The Lawyers Defending Trump’s Tariffs Know They’re Un-American. Here’s How We Can Tell
Legal scholars who cherry pick American history to ignore the American Revolution aren’t making an accidental oversight
As we approach the 250th anniversary of the Declaration of Independence, it should be shocking that there are legal authorities openly claiming that our president should have the powers of a king. Yet that’s exactly what’s happening.
On November 5, the Supreme Court heard oral arguments on the case concerning Trump’s sweeping tariff executive orders. To prepare, the court reviewed a host of filings from litigants and amicus briefs from interested parties.1 The nearly explicit defense of monarchical powers can be found in the briefs supporting the president’s tariffs. At moments in the oral arguments, the issue emerged, but not with the full level of attention it deserved.
Across a range of topics, these briefs desperately invoke implausible arguments to rationalize the legality of the president’s desired outcome. We’re told tariffs aren’t actually taxes, but regulations. And that they are authorized by laws he never invoked as authorities — like the law that imposed the infamous Smoot-Hawley tariff of 1930 which, they claim, wasn’t actually repealed by more recent tariff laws. The obsequiousness of these legal court jesters is disturbing enough, but there’s something worse.
Among their desperate arguments is one that cuts to the core of veneration of autocracy. In various briefs, these lawyers invoke what looks at first like respectable scholarship: the juridically orthodox doctrine of “originalism.” They argue that it is consistent with the original intent of the founders for Congress to delegate to the president a virtually unlimited tariff power.
In fact the argument engages in profoundly dishonest scholarship. And one does not need to be a legal scholar to appreciate that it is also profoundly un-American scholarship, as are the powers it seeks to justify. On some level, these scholars must know that, because they cherry-pick their historical data so precisely to neatly omit key facts and moments of the American Revolution, they are obscuring from their audience what is so revolutionary about the American legal and political system the judges are tasked with defending.
Treating the President as Heir to the British King
The first sign that both the president’s lawyers and the authors of allied amicus briefs harbor deeply un-American sympathies is their unflinching willingness to make arguments that conceive of the president as the heir to the British crown.
In contrast to a king’s near total power, the U.S. Constitution famously outlines a separation of powers among the legislative, executive, and judicial branches. Constitutional jurisprudence has long upheld an implication: the “nondelegation doctrine,” the idea that Congress cannot delegate its legislative powers to the executive branch, especially on a subject that has “vast economic and political significance” for the country, as the tariffs clearly do.
Congress, of course, has the constitutionally enumerated powers to impose taxes and duties and to regulate foreign commerce. It has passed a series of laws delegating to the president limited powers to adjust tariff rates in specific, well-defined circumstances. But the president’s lawyers cite another law that allegedly delegates vast tariff power to the executive, the 1977 International Emergency Economic Powers Act (IEEPA), which gives the president the power to “regulate” imports in response to “economic” emergencies.2 They argue that this implies a sweeping power to declare decades-old trade deficits an “emergency” and set tariffs (unmentioned in the text of the law) at whatever unprecedented levels he chooses, for an indefinite period of time.
Wouldn’t the IEEPA interpreted this way count as the very kind of profound breach of the separation of powers the non-delegation doctrine warns against?
The answer the president’s lawyers give is that it’s unproblematic for Congress to utterly alienate its tariff power through a law like the IEEPA because tariffs are a tool of foreign policy and the framers vested the commander in chief with discretion over foreign policy. (In the brief by the president’s lawyers: “The non-delegation doctrine plays a ‘more limited role’ in ‘the national security and foreign policy realms’ than in the domestic sphere.”3 )
Indeed, the Constitution does give the president special foreign policy discretion. I have argued elsewhere that it’s absurd to think of tariffs as part of the president’s foreign policy authority, because they have little if anything to do with the embargo power he needs to oppose military threats. But we see the first shockingly un-American element of the president’s position when his lawyers explain why they think sweeping tariff powers can be safely delegated away to the president.
Here’s where it’s made to look scholarly. In his July 2025 brief representing the president, Solicitor General D. John Sauer cites a book by Stanford Law School professor Michael W. McConnell as an authority on why the president’s foreign policy discretion erases non-delegation concerns.4 Two other amicus briefs supporting the president also cite McConnell.5 They cite historical evidence from McConnell’s book to suggest it’s unproblematic to delegate Congress’s power to regulate foreign commerce because it is a power “formerly exercised by the king.” Citing this as an “originalist” justification, one of the briefs notes that the king of England exercised “sole power” over trade even before the 1688 Glorious Revolution.6
The argument’s scholarly veneer is a travesty. To begin with, it cherry-picks from McConnell’s book. The book also details how as far back as the Magna Carta (in 1215!), foreigners had a right to trade with Englishmen subject only to the say of Parliament.7 It’s true that monarchs gained more power over trade after this because of royal charters to trade corporations like the British East India company.8 But then Parliament began working to claw this power back from the king shortly after the Glorious Revolution — and succeeded in doing so fully shortly after the American Revolution.9 So even the English history presented by McConnell is being distorted.
Much more important is how this cherry-picked history is manipulated to remarkably un-American ends. While it’s true that the English king did formerly have more power over trade, McConnell does not argue (and even denies) that it’s because a power was formerly the king’s that it could be delegated to the executive branch. Instead, he stresses that it’s because delegating certain foreign policy powers to the executive would not violate the liberty or property rights of American citizens, a standard the American founders drew from the Enlightenment philosophy of John Locke.10 The kicker is that the title of McConnell’s book is The President Who Would Not Be King. Its overriding thesis is that the founders consciously stripped from the executive branch many powers of the king and gave them to Congress precisely to stop the president from tyrannizing against American liberties as the king did.11
It should not come as a shock that Professor McConnell himself went on to help write the major amicus brief opposing Trump’s claim to virtually unlimited tariff power.12
Originalism is appealing to those who revere America’s Founding Fathers and documents. But too many slip back and forth between thinking that the founders are to be revered because they did something great, and because they represent preserved, long-held tradition. Trump’s “originalist” apologists exploit this ambiguity and cash in on the tradition worship, with the effect of negating what actually made the founders great: they overthrew the authority of the king on the basis of revolutionary philosophy that would liberate mankind from shackles. In their desperation to justify Trump’s tariff powers, Trump’s apologists reveal a willingness to trample on that revolution and reinstitute a monarchy.
Ignoring a Revolution Against Taxation Without Representation
A second act of desperation that exposes the un-American ambitions of Trump’s tariff apologists comes up in their bizarre contention that tariffs are not really taxes but regulations. That’s even though Trump regularly boasts about how much money the tariffs rake in and clearly intends to use them to fill the government’s coffers.
One of the originalist amicus briefs (by Professor Chad Squitieri of Catholic University’s School of Law) argues that there is no constitutional problem with congressional delegation of tariffs, because tariffs can be used to regulate commerce rather than to tax.13 Let’s leave aside that the power to regulate commerce is also a power of Congress, not a matter of the president’s foreign policy discretion. What’s remarkably audacious about Squitieri’s argument is the “originalist” historical trivia he appeals to in order to make plausible the distinction between tax-collecting and regulatory use of tariffs: he claims that American revolutionary pamphleteers were fully supportive of the British power to regulate trade, just not to tax in order to raise revenue.14
There clearly is a difference between the powers of taxation and foreign commerce regulation. They’re mentioned in separate clauses of Article I, Section 8, of the Constitution (which, of course, enumerates both as powers of Congress). Yet Squitieri slants his argument about the pamphleteers’ distinction in a way that papers over a fact he must find uncomfortable but which is nonetheless one of the most glorious chapters of the American Revolution.
The law review article Squitieri cites to substantiate his history, by Robert G. Natelson, does indeed list several pamphleteers (Richard Bland, John Adams, James Wilson, and John Dickinson) who concede in one moment or other some British right to regulate trade by (for instance, allegedly) “charging fees to fund inspections and imposing prohibitory tariffs to restrict trade.”15 But as before, actually looking at the primary sources (not all of which are even cited by the Natelson article) reveals slipshod scholarship.
For instance, while Richard Bland’s main pamphlet, An Inquiry into The Rights of The British Colonies, makes vague concessions to unspecified “Regulations lately made to encourage Population in the new Acquisitions,” the pamphlet is otherwise concerned with denouncing any number of taxes and trade restrictions imposed by English kings on Virginia as far back as 1625.16 He recounts how Virginians and their local assemblies petitioned for relief from these restrictions, and always celebrates whenever the king restored freedom of trade. Notably he even condemns the Navigation Acts which restricted the colonies from trading with nations other than England, a form of trade regulation — not a tax — that many other colonists did not dispute. It may have been a power of Parliament to regulate such trade, but he vocally disputes that it is their right. So the claim that all of these pamphleteers had no dispute with the British power to regulate trade is a gross distortion.
These distortions also have the effect of blanking out that the taxes that the pamphleteers obviously condemned were the import duties imposed on American colonists — on commodities such as glass, paper, and tea — the taxes which sparked the Revolution itself. What ultimately generated their outrage was not only that the tea tax imposed by the Townshend Act of 1767 was aimed at raising revenue, but famously because it imposed taxation without representation. The pamphleteers objected to taxes not passed by the colonial legislatures that actually represented them.
Sound familiar?
Consider the example of John Dickinson, the main pamphleteer cited by the Natelson law review article, whose Letters from a Farmer in Pennsylvania was instrumental in mobilizing popular sentiment in the colonies against the Townshend Act.17 Like all the other pamphleteers, Dickinson throughout the letters objects to taxes imposed by a distant power in whose legislature the colonists were not represented. (Note even here that it’s the British legislature and not the king that explicitly has this power!) But in his Letter VII he goes much further, objecting specifically to the import duties recently levied by the British and to the fact that they are hidden in the prices colonists had to pay to importers, making them suited to “arbitrary and oppressive governments.” He objects that even small duties can establish a precedent for future increases, if there are no political representatives who can check the increase. Even more remarkably, Dickinson complains of taxes “taken from us for our defence” because they could be “employed to our injury.” “We may be chained in by a line of fortifications: obliged to pay for building and maintaining them; and be told that they are for our defence.”
Like the British duties on imported tea, Trump’s tariffs are imposed without any obvious approval from our representatives in Congress. Like the British import duties, there is little our representatives can do (short of repealing the IEEPA) to check their arbitrary increase — as long as we’re in an “emergency,” Trump can and has changed them from 10% to 15% to 50% to 100% or more on various countries. (This came up in the recent oral arguments, where Justice Gorsuch made clear that even though Congress can vote to cancel the president’s emergency, the president can veto their vote, and Congress requires a supermajority to overturn his veto.)
And of course Trump’s tariffs are also done with the rationalization of “defense” — on the ground that the president has unique authority to defend our national security against the onslaught of threats posed by imports of furniture, coffee, and toy dolls.
The brazen attempt to insist that the revolutionaries were conceding the validity of any arbitrary trade regulation imposed by the executive branch papers over the most significant spark of the American Revolution, the Boston Tea Party itself. And of course while engaging in special pleading to distinguish taxes from regulations, it neglects that the power to regulate foreign trade is itself a legislative power of Congress, which the founders also stripped away from the executive — no doubt because of the memory of George III’s role in instigating Parliament to maintain the tax on tea.18
The New Frontiers of Liberty
Those who are sympathetic to originalism are right to look to the achievements and wisdom of the founders when settling questions of legal and constitutional interpretation. Obviously, what made the founders great was not that they upheld tradition, but that they created a new, revolutionary legal framework, a system of checks and balances that worked better than any system previously devised to protect individual liberties.
When American political philosophy fully broke with the notion of a hereditary monarch — and with the wider European system of inherited titles — it not only broke new ground in legal theory but helped structure a society in which individuals could forge new paths with their lives. They realized, with Jefferson, that the “mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god.”19
With those saddles removed, Americans burst out into new frontiers, not just geographically, but commercially and culturally. Corporations ceased largely to be endowed monopolies by the state (like the British East India Company) and became items of private property that any could create and against which many could and would compete.20 As Americans began to regard inherited status as an irrelevance, they came to see being self-made as admirable.21 Trade — both international and domestic — came to be seen as the American way of life, not as unseemly behavior unbefitting of gentlemen.22
The unleashed spirit of American ambition would have looked with contempt on the idea now being pushed by the tariff apologists, the idea that overseas trade — i.e., competition — is a threat to our “security” that needs to be taxed to subsidize the uncompetitive. So, it is not just the details of the pseudo-scholarly arguments that channel the contemptible un-American attitude. It is also the very essence of the policy in favor of which they marshal their desperate arguments.
We know, of course, that the framers’ original system was far from perfect. From slavery to the disenfranchisement of women, the basic contradictions with the underlying principles of individual freedom at the core of the system had to be resolved — eventually through further legal innovation and amendment of the Constitution. That the framers created a constitution that permitted its own amendment was itself revolutionary — and a stark reminder that their overall “original intent” was for a system that could evolve on the basis of rational observation and principle.
But above all, the fundamental original intent of the framers — whether or not the language of the Constitution implemented this intent — was to create a system that protected individual rights to life, liberty, and the pursuit of happiness. They crafted a constitution to “secure the blessings of Liberty” by carefully defining a separation of powers. Defenders of the president’s new powers may seek to justify his tariffs by citing details of English history or obscure American pamphlets. But when they do it in a way that blatantly ignores the founders’ love for liberty and hatred of unchecked tyranny, they betray the deeply un-American premises at work in the push to deliver him these powers.
During oral arguments Justice Gorsuch seemed to get just this point. At the end of the session he said: “a key part of the context is the constitutional assignment of the taxing power to Congress, the power to reach into the pockets of the American people is just different, and it has been different since the founding and the Navigation Acts were part of the spark of the American revolution, where Parliament asserted the power to tax to regulate commerce. . . . Americans thought even Parliament couldn’t do that, that that had to be done locally through elected representatives.”23 He makes clear that this is the issue at the nub of the nondelegation controversy. If he truly understands that, he and the other justices should know what they now need to do.
That legal court jesters seek to make our president a king on the eve of the 250th anniversary of the Declaration of Independence is a cruel and absurd joke. The Supreme Court must now repudiate it.
Learning Resources, Inc., et al., Petitioners v. Donald J. Trump, President of the United States, et al., Docket No. 24-1287, U.S. Supreme Court (2025), accessed November 17, 2025.
50 U.S. Code § 1702 (1977).
Brief for the Respondents in Opposition, Learning Resources, Inc., et al., Petitioners v. Donald J. Trump, President of the United States, et al., No. 24-1287 (U.S. Supreme Court, 2025), 12.
Brief for the Respondents in Opposition, Learning Resources, Inc., et al., Petitioners v. Donald J. Trump, President of the United States, et al., No. 24-1287 (U.S. Supreme Court, 2025), 13.
Brief of Professor Chad Squitieri as Amicus Curiae in Support of Respondents in No. 24-1287 and Petitioners In No. 25-250, Learning Resources, Inc., et al., Petitioners, v. Donald J. Trump, President of the United States, et al., Respondents, No. 24-1287; Donald J. Trump, President of the United States, et al., Petitioners, v. V.O.S. Selections, Inc., et al., Respondents, No. 25-250, (U.S. Supreme Court, 2025), 30–31; Brief of U.S. Representatives Darrell Issa & Brian Mast, America First Legal Foundation, and Coalition for A Prosperous America as Amici Curiae in Support of Donald J. Trump, et al., Learning Resources, Inc., et al., Petitioners, v. Donald J. Trump, President of the United States, et al., Respondents, No. 24-1287; Donald J. Trump, President of the United States, et al., Petitioners, v. V.O.S. Selections, Inc., et al., Respondents, No. 25-250, (U.S. Supreme Court, 2025), 14–15.
Michael W. McConnell, The President Who Would Not Be King: Executive Power Under the Constitution (Princeton, NJ: Princeton University Press, 2020), 214–15.
McConnell, The President Who Would Not Be King, 215.
McConnell, The President Who Would Not Be King, 216–17.
McConnell, The President Who Would Not Be King, 332.
McConnell, The President Who Would Not Be King, 74, 99, 177–78, 217–18.
Brief for Private Respondents, Donald J. Trump, President of the United States, et al., Petitioners, v. V.O.S. Selections, Inc., et al., No. 25-250, (U.S. Supreme Court, 2025).
Brief of Professor Chad Squitieri, 6–7, 19.
Robert G. Natelson, “What the Constitution Means by ‘Duties, Imposts, and Excises’ — and ‘Taxes’ (Direct or Otherwise),” Case Western Reserve Law Review, 66, no. 2 (2015), 306.
Richard Bland, “An Inquiry Into the Rights of the British Colonies, Intended as an Answer to the Regulations Lately Made Concerning the Colonies, and the Taxes Imposed Upon Them Considered: In a Letter Addressed to the Author of That Pamphlet,” Evans Early American Imprint Collection, University of Michigan Library Digital Collections.
John Dickninson, “Letters From a Farmer in Pennsylvania,” Project Gutenberg Ebook.
Benjamin Woods Labaree, The Boston Tea Party (Boston: Northeastern University Press, 1979), 22.
Labaree, The Boston Tea Party, 41–42, 84; see also McConnell, The President Who Would Not Be King, 218.
“Thomas Jefferson to Roger Weightman,” June 24, 1826, Library of Congress.
Gordon S. Wood, The Radicalism of the American Revolution (New York: Vintage Books, 1991), 319–21.
Wood, The Radicalism of the American Revolution, 341.
Wood, The Radicalism of the American Revolution, 338–39.
Transcript of Oral Argument at 182–83, Learning Resources, Inc., et al., Petitioners, v. Donald J. Trump, President of the United States, et al., Respondents, No. 24-1287; Donald J. Trump, President of the United States, et al., Petitioners, v. V.O.S. Selections, Inc., et al., Respondents, No. 25-250, (U.S. Supreme Court, November 5, 2025).
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Thank you, Ben (and ARI). This essay is really excellent and enlightening.
Excellent article. It’s heartening to see ARI has a spine and integrity when it comes to repudiating the anti-intellectual, anti-individual, anti-American Trump administration.