Technology
Former Judges Invoke Alexander Hamilton in Cautionary Message to Supreme Court Regarding Trump
More than 30 former federal judges have informed the U.S. Supreme Court that President Donald Trump does not possess “unlimited power to impose tariffs on all goods imported from all trading partners.”
In a 21-page amicus brief, these ex-judges, appointed by presidents from both major political parties, express their concern. They emphasize their ongoing commitment to maintaining the independence of the federal judiciary.
Their brief cautions that the Trump administration’s stance could undermine the judiciary’s role in the crucial tariffs case currently under consideration by the Supreme Court.
The judges stress the importance of respecting the separation of powers, ensuring that any legislative power delegated to the President undergoes thorough judicial scrutiny.
This legal battle encompasses a series of cases initiated by diverse groups challenging Trump’s tariff policies.
In mid-April, V.O.S. Selections, an alcohol importer, and other businesses filed a lawsuit against the tariffs, citing issues such as pricing chaos, shipping disruptions, limited product selection, inventory challenges, cash flow problems, and reduced purchase orders. By late April, 12 states led by Democratic administrations had similarly contested Trump’s tariffs. These cases have since been consolidated.
In late May, the consolidated plaintiffs won the argument – securing a formal kibosh on the tariffs by a unanimous three-judge panel on the Court of International Trade. But in real terms, that ruling was immediately stayed by a 10-judge panel on the appellate court. Then, in August, the U.S. Court of Appeals for the Federal Circuit ruled against the tariffs again – and also stayed its own ruling until Oct. 14 to give the government time to appeal to the Supreme Court.
In early September, the Trump administration filed their petition for a writ of certiorari, warning an end to Trump’s claimed tariffs powers would place America on the “brink” of economic “catastrophe.”
The major question before the court is whether or not the president has the power to unilaterally impose tariffs under the International Emergency Economic Powers Act (IEEPA).
Each court to review the question has answered in the negative.
The ex-judges, in their amicus brief, phrased the matter slightly differently. First, they say, the IEEPA question is more a matter of whether Congress has ceded such broad authority to the president. And, second, whether the legality of the president’s actions is beyond the scope of judicial review.
As for the IEEPA issue, the amici say the federal government is arguing “to uphold the transfer of total authority to set tariffs to the President.”
“[F]or a delegation to pass constitutional muster, Congress must ‘lay down by legislative act an intelligible principle to which the person or body to fix such rates is directed to conform,’” the amicus brief argues. “Here by contrast, the IEEPA provides no standards to guide the president in determining the countries on which tariffs should be imposed, the goods that should be subject to a tariff, or the rate of such tariffs.”
Prior delegations of such powers allowed by the law have involved specific and prescriptive details – surpassing even guidelines as to their specificity – and “an intelligible principle” with which the president must “conform,” the judges say. But, they insist, nothing like that is happening here.
“According to President Trump, he can do whatever he wants when it comes to tariffs, imposing them (as he has) even on countries that do not contribute to America’s drug-trafficking problem and have no negative balance of payments with the United States,” the brief goes on. “We respectfully submit that this is not the law. Under our Constitution, and its careful allocation and separation of powers, Congress cannot hand its tariff-setting authority over to the President lock, stock, and barrel, allowing him to aim it whenever, wherever, and however he pleases.”
On the second issue – of judicial review over tariff-setting – the onetime judges portend an even more dire state of affairs, warning of unmitigated power metastasizing indefinitely into amalgam both familiar and abhorrent to U.S. history, politics, and law.
From the amicus brief, at length:
[T]his Court should reject the Solicitor General’s argument that courts lack the power to decide whether there were, in fact, “unusual and extraordinary” threats that justified the President’s use of the powers assertedly conferred by IEEPA. Giving the President the unreviewable authority to decide whether he may exercise emergency powers would be antithetical to the balance of powers that our founders established as the bedrock of the Constitution…it is the province of the judicial branch to determine whether the President has gone beyond what the law allows.
“For this court to rule that the president alone can exercise unlimited legislative powers without judicial review of a determination that a national emergency exists would give the president tyrannical powers,” the brief continues. “Alexander Hamilton observed in The Federalist No. 47: ‘The accumulation of all powers, legislative, executive and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.’”
More than 30 former federal judges have informed the U.S. Supreme Court that President Donald Trump does not possess “unlimited power to impose tariffs on all goods imported from all trading partners.”
In a 21-page amicus brief, these ex-judges, appointed by presidents from both major political parties, express their concern. They emphasize their ongoing commitment to maintaining the independence of the federal judiciary.
Their brief cautions that the Trump administration’s stance could undermine the judiciary’s role in the crucial tariffs case currently under consideration by the Supreme Court.
The judges stress the importance of respecting the separation of powers, ensuring that any legislative power delegated to the President undergoes thorough judicial scrutiny.
This legal battle encompasses a series of cases initiated by diverse groups challenging Trump’s tariff policies.
In mid-April, V.O.S. Selections, an alcohol importer, and other businesses filed a lawsuit against the tariffs, citing issues such as pricing chaos, shipping disruptions, limited product selection, inventory challenges, cash flow problems, and reduced purchase orders. By late April, 12 states led by Democratic administrations had similarly contested Trump’s tariffs. These cases have since been consolidated.
In late May, the consolidated plaintiffs won the argument – securing a formal kibosh on the tariffs by a unanimous three-judge panel on the Court of International Trade. But in real terms, that ruling was immediately stayed by a 10-judge panel on the appellate court. Then, in August, the U.S. Court of Appeals for the Federal Circuit ruled against the tariffs again – and also stayed its own ruling until Oct. 14 to give the government time to appeal to the Supreme Court.
In early September, the Trump administration filed their petition for a writ of certiorari, warning an end to Trump’s claimed tariffs powers would place America on the “brink” of economic “catastrophe.”
The major question before the court is whether or not the president has the power to unilaterally impose tariffs under the International Emergency Economic Powers Act (IEEPA).
Each court to review the question has answered in the negative.
The ex-judges, in their amicus brief, phrased the matter slightly differently. First, they say, the IEEPA question is more a matter of whether Congress has ceded such broad authority to the president. And, second, whether the legality of the president’s actions is beyond the scope of judicial review.
As for the IEEPA issue, the amici say the federal government is arguing “to uphold the transfer of total authority to set tariffs to the President.”
“[F]or a delegation to pass constitutional muster, Congress must ‘lay down by legislative act an intelligible principle to which the person or body to fix such rates is directed to conform,’” the amicus brief argues. “Here by contrast, the IEEPA provides no standards to guide the president in determining the countries on which tariffs should be imposed, the goods that should be subject to a tariff, or the rate of such tariffs.”
Prior delegations of such powers allowed by the law have involved specific and prescriptive details – surpassing even guidelines as to their specificity – and “an intelligible principle” with which the president must “conform,” the judges say. But, they insist, nothing like that is happening here.
“According to President Trump, he can do whatever he wants when it comes to tariffs, imposing them (as he has) even on countries that do not contribute to America’s drug-trafficking problem and have no negative balance of payments with the United States,” the brief goes on. “We respectfully submit that this is not the law. Under our Constitution, and its careful allocation and separation of powers, Congress cannot hand its tariff-setting authority over to the President lock, stock, and barrel, allowing him to aim it whenever, wherever, and however he pleases.”
On the second issue – of judicial review over tariff-setting – the onetime judges portend an even more dire state of affairs, warning of unmitigated power metastasizing indefinitely into amalgam both familiar and abhorrent to U.S. history, politics, and law.
From the amicus brief, at length:
[T]his Court should reject the Solicitor General’s argument that courts lack the power to decide whether there were, in fact, “unusual and extraordinary” threats that justified the President’s use of the powers assertedly conferred by IEEPA. Giving the President the unreviewable authority to decide whether he may exercise emergency powers would be antithetical to the balance of powers that our founders established as the bedrock of the Constitution…it is the province of the judicial branch to determine whether the President has gone beyond what the law allows.
“For this court to rule that the president alone can exercise unlimited legislative powers without judicial review of a determination that a national emergency exists would give the president tyrannical powers,” the brief continues. “Alexander Hamilton observed in The Federalist No. 47: ‘The accumulation of all powers, legislative, executive and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.’”
