Why We're Joining the Legal Fight Over Trump's Tariffs - WSJ Claybourn oped
I joined a broad coalition of leaders—including former U.S. senators, retired federal judges, a former U.S. attorney general and pre-eminent constitutional scholars—in filing a friend-of-the-court brief last week in V.O.S. Selections v. Trump. Our brief urges the U.S. Court of International Trade to strike down President Trump’s 2025 tariffs as an unlawful and unprecedented seizure of legislative power. It challenges Mr. Trump’s sweeping proclamations not because of what they do but how they were done: unilaterally, without congressional authorization, and in defiance of the Constitution’s structure.
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Tariffs are taxes, and under the Constitution, they must be enacted by Congress. Mr. Trump claims authority under the International Emergency Economic Powers Act of 1977. But that law allows the president to freeze certain foreign assets in times of national emergency, not to impose new taxes on Americans. It was a post-Watergate reform crafted to limit executive power, not expand it.
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Conservatives have spent decades preaching the importance of limited government, checks and balances, enumerated powers and the rule of law. We have insisted that means matter—that you can’t govern well by ignoring the architecture of the Constitution. We rallied against executive overreach under President Obama, rightly pointing out that even noble goals don’t justify unconstitutional methods. What are we to make of this moment, when a president supposedly from our own ranks casts aside those same constraints?
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The Constitution doesn’t enforce itself. It depends on citizens and institutions willing to defend its boundaries—even when doing so is politically inconvenient. That’s why this legal challenge matters. It asks the courts, and the country, a simple question: Can the president tax the American people without clear and limited authority from Congress? To say yes would be to accept taxation without representation.
In Federalist No. 48, James Madison warned that the erosion of liberty rarely comes by force. More often, it slips away through quiet encroachments—gradual, tolerated and then entrenched. Power doesn’t announce itself with a roar. It seeps in, clause by clause, until the foundations give way.
Mr. Claybourn is an attorney in Indiana.
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