A New Civil Liberties Alliance Video on Its First Lawsuit Challenging the Legality of Trump's Tariffs
In recent weeks, I have been studying the debate over the constitutionality of Trump's tariffs and comparing this with the debates in the seventeenth century over the legality of King Charles I's claims to absolute monarchic power. I have drawn three conclusions from this.
First, while Trump's supporters have said that he will "smash the deep state and the administrative state" (Charlie Kirk's words), Trump's tariffs show that far from smashing the administrative state, he wants to take it over and use it as an instrument for his personal dictatorial power.
Second, Charles I's attempt to raise taxes through "ship money" without Parliamentary authority was essentially the same dictatorial move as Trump's tariffs--taxation without representation.
Third, Trump and Charles exhibit the same chimpanzee political psychology of autocrats striving for despotic dominance, and the cultural history of politics shows that the only effective way to secure our individual freedom from such domination is countervailance--a system of divided and balanced powers that check one another--that can be enforced by an independent judiciary that adheres to constitutional or natural law.
TARIFFS IN TRUMP'S ADMINISTRATIVE STATE
The New Civil Liberties Alliance (NCLA) has filed two lawsuits challenging the constitutionality of Trump's tariffs. In Simplified et al. v. Donald J. Trump et al. (filed April 3, 2025), NCLA argues for a small company named "Simplified" that sells premium planners, organizational tools, and home management products. Simplified imports its products from China, and paying large sums in tariffs will threaten the economic viability of the company. (The full filing for Simplified can be found here.) In FIREDISC, Inc, et al. v. Donald J. Trump et al. (filed July 21, 2025), NCLA argues for some companies in Texas whose business depends on imports from China and other countries. (The full filing for FIREDISC can be found here.)
In both cases, NCLA makes the same four arguments for why Trump's imposing tariffs through executive orders is unconstitutional.
First, in his Tariff Executive Orders, Trump invokes the International Emergency Powers Act of 1977 ("IEEPA") as the statutory authorization for these orders. But IEEPA does not give the President the power to impose tariffs. Indeed, IEEPA does not even mention tariffs. And in the 50 years since the enactment of IEEPA, no president (prior to Trump) has used IEEPA as authorization for the president to enact tariffs.
IEEPA allows the president to authorize asset freezes, trade embargoes, and similar economic sanctions to counter external emergencies created by dangerous foreign actors such as terrorist organizations and hostile countries such as Iran and Russia. But this says nothing about enacting economic policies for tariffs.
The Constitution clearly vests the power to enact tariffs exclusively in Congress. The very first enumerated power of Congress in Article I, Section 8, is the "Power To lay and collect Taxes, Duties, Imposts and Excises." The Congress also has the power "to regulate Commerce with foreign Nations." The Constitution never says the President has such powers. The obvious reason for this is that under the principle of "no taxation without representation"--one of the primary principles for the American Revolution--the constitutional framers were careful to put the taxing power in the hands of the Congress as popular representatives of the people, and this includes tariffs since they are taxes on the people.
The Congress has enacted carefully crafted trade statutes that allow the president to authorize tariffs. The NCLA's filing explains: "These statutes typically authorize tariffs only on industries or countries that meet specified criteria, and only under specified conditions, after following specified procedures. Such statutes require advance investigations, detailed factual findings, and a close fit between the statutory authority and the tariff's scope." These statutes are all located in the "Customs Duties" Title of the United States Code (U.S. Code Title 19). The IEEPA is located in the "War and National Defense" section of the Code (U.S. Code Title 50).
In his first term, Trump went through the elaborate procedures required by the trade statutes to impose tariffs. Performing the required procedures for the China tariff took more than 10 months. The steel and aluminum tariffs took 11 months. The washer and solar cell tariffs took more than 8 months. Obviously, Trump in the first months of his second term decided that he did not want to be constrained by such laborious procedures for enacting new tariffs. That's why he invoked the IEEPA to allow him to impose tariffs by simply signing executive orders, even though the IEEPA says nothing about tariffs.
The second argument against allowing the President to enact tariffs through the IEEPA is that even if judges mistakenly decided that the IEEPA allows tariffs in some cases, it still would not allow them in this case. The IEEPA limits presidents to actions that are "necessary" to address the specific emergency at hand. Trump declared that the country faced emergencies because of illegal opioids entering the U.S. and because of trade deficits. But Trump has not demonstrated that tariffs are "necessary" to solve these two problems. Amazingly, Trump is threatening to impose a tariff of 50% on Brazil even though the value of U.S. exports to Brazil exceeds the value of U.S. imports from Brazil.
The third argument is that if judges were to mistakenly decide that the IEEPA allows the President to impose tariffs, this would make the IEEPA an unconstitutional law, because the courts have said that the Congress cannot delegate its powers to tax and to regulate commerce with foreign nations to the President if there is no "intelligible principle" constraining the President's authority. And, indeed, there is no such "intelligible principle" in the IEEPA.
The fourth argument is that the Administrative Procedure Act requires a reviewing court to "hold unlawful and set aside agency action" that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," "contrary to constitutional right, power, privilege, or immunity," or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." Since Trump's tariffs are unconstitutional, the administrators in U.S. Customs and Border Protection who are enforcing these tariffs are violating the Administrative Procedure Act.
These arguments manifest the mission of the New Civil Liberties Alliance as a nonprofit public interest law firm founded in 2017 by Columbia Law School professor Philip Hamburger "to protect constitutional freedoms from violations by the unconstitutional Administrative State." Most of the financial support for the NCLA comes from groups affiliated with Charles Koch and Leonard Leo, which is to say it is part of the network of conservative legal groups that includes the Federalist Society. One of the primary aims of these groups is to appeal to an "originalist" or "textualist" interpretation of the Constitution that would strike down the Administrative State as unconstitutional. One of Hamburger's books is entitled Is Administrative Law Unlawful? His answer to that question is No.
Originally, in his first campaign for the presidency, Trump said that he would follow the advice of the conservative legal movement. "We're going to have great judges, conservative, all picked by the Federalist Society." And, indeed, during his first term, most of his federal judge appointees were selected from lists provided by Leonard Leo and the Federalist Society--including his three Supreme Court appointees: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
But then Trump became angry when federal judges that he had appointed rejected his arguments for overturning the presidential election of 2020. Even his Supreme Court appointees refused to intervene in his favor.
More recently, however, his Supreme Court appointees have supported him. Most importantly, last year, in United States v. Donald Trump, Trump's appointees violated the original meaning of the Constitution and actually amended the Constitution in ruling that the President has immunity from criminal prosecution for any of his "official acts" as president, which include criminally conspiring to overturn a presidential election! In her dissenting opinion, Sotomayor rightly observed that this decision makes the President "a King above the law."
And yet, in recent months, Trump's federal judges have turned against him on the issue of presidential tariffs. In May, a three-judge panel (the U.S. Court of International Trade) ruled that the IEEPA does not give the President the authority to impose tariffs. In response, Trump exploded with posts on his social media platform denouncing Leonard Leo and the Federalist Society. He sneered that Leo was a "sleazebag" and "bad person" who "probably hates America." He complained: "I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations."
Trump's mistake was not realizing that as long as the Federalist Society judges remain faithful to the original meaning of the Constitution, they will overturn Trump's Administrative State as unconstitutional. We can see that now not only in the courts striking down Trump's Tariff Executive Orders as unconstitutional but also in the courts ruling against ICE's denial of the constitutional right to due process of law in the Fourth Amendment.
It remains to be seen, however, whether Trump's Supreme Court Justices will uphold these lower court decisions against Trump's Administrative State. If they follow the example they set in United States v. Donald Trump, Trump's SCOTUS judges could ignore the original meaning of the Constitution and the laws in order to give Trump's Administrative State unlimited power to violate constitutional rights. But if they were to do that, they would blatantly display the hypocrisy of their professions of originalist jurisprudence.
SHIP MONEY IN CHARLES I'S MONARCHIC TYRANNY
Trump's claim to exercise arbitrary absolute power through the Administrative State is remarkably similar to Charles I's claim to have the prerogative powers of a king above the law. Consider, for example, the "Ship-Money Case" of 1637.
In 1629, Charles had dissolved Parliament, and he refused to call Parliament back into session for the next 11 years, so that he had personal rule over England without Parliament checking his power. But since by the common law, only Parliament could approve taxes, Charles struggled to find ways to finance his government.
In 1637, the King's legal advisers found a source of money in the ancient duty of every coastal county to provide and pay for a ship for the Royal Navy. The King decided to extend this duty to all counties, even those that were not on the coast, and to collect the money through individual assessments. He wanted to raise enough money to finance not only the navy but also the army and the government. He did this even though England was not at war, and there was no immediate prospect of war, in 1637. If he could do this, he would never need to recall Parliament.
This would work only if the King could persuade his judges that ship money was not a tax and that the King could levy it whenever he announced that the Navy faced a national emergency. Notice the similarity with Trump's claims that a tariff is not a tax and that his arbitrary declaration of a national emergency under IEEPA cannot be questioned.
A test case in the courts over the legality of the ship money arose when John Hampden refused to pay his ship money levy in November of 1637. The case was brought before 12 justices who were under pressure from the King to rule in his favor.
Hampden's lawyer argued that while the King had the right to declare war, only Parliament could decide whether to raise taxes to finance the war, and the ship money was clearly a tax. Moreover, he argued, England was not at war, and so there was no national emergency that could justify raising taxes.
Over several days, each of the twelve judges in turn read his decision. Seven of the twelve ruled for the King. As they explained, "The King may dispense with any laws in case of necessity." They also declared: "The law knows no such King-yoking policy. The law is of itself an old and trusty servant of the King's; it is his instrument . . . it is common and most true that Rex is Lex . . . The King can do no wrong" (Robertson, Tyrannicide Brief, 48-49).
Although this might have seemed to be a clear victory for the King, that five of the twelve judges dissented sent a message to the public that they were probably right. Many people refused to pay their ship money assessments. And by 1640, only about one third of the assessments had been paid. Civil disobedience was sweeping across England. This was one reason why Charles was finally forced to call Parliament back into session in 1640.
Similarly, we can expect that the popular judgment that Trump's tariffs are illegal and unconstitutional will promote civil disobedience. Previously, I have written about smuggling as the natural right to evade Trump's tariffs.
And even if the majority of the Supreme Court Justices uphold Trump's tariffs (or his use of ICE to deny the right to due process of law), we can expect that at least three of the Justices will write persuasive dissents that can sway public opinion against the majority.
COUNTERVAILANCE AND FREEDOM FROM DOMINATION
Just as Charles I claimed that as King he was above the law and could do no wrong, Trump claims "As President I can do whatever I want."
I have written about the evolutionary history of this desire for despotic dominance over others, of how many human beings naturally show deference to such dominance, but also how the natural desire to be free from domination moves many human beings to resist despotic rule. The tendency to defer to Trump's grandiose narcissism of dominance is manifest among those MAGA intellectuals like Curtis Yarvin and Michael Anton who look forward to Trump's rule as a monarchic or Caesaristic autocrat.
If America escapes this, it will be because the American system of countervailing powers--the separation and balance of powers--has constrained Trump's Administrative State. Even if the Congress fails to provide that constraint--because the Republicans controlling Congress are subservient to Trump--we can hope that the courts will enforce constitutional limits on Trump's claims to absolute power. We can also hope that independent centers of power in civil society--in groups like the New Civil Liberties Alliance--will succeed in persuading the courts to secure constitutional liberty. Finally, we can foresee that nonviolent resistance (like smuggling and protecting immigrants from ICE) and mass protests (like the "No Kings" protests) will show popular resistance to despotic dominance.
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