Trump's Trifecta

President Donald Trump’s recent executive orders conflict with three common assumptions of American constitutionalism, which have been foundational to conservative thought. First, there is a strong and abiding respect for the separation of powers, which, in oversimplified form, leaves legislation to Congress, enforcement to the President and the executive branch, and legal disputes to the judiciary. Second, there is a rebuttable presumption that the operation of markets and other voluntary organizations are the best way to assure social peace and economic prosperity. And third, the civility of social discourse is crucial to resolving differences through constructive compromise in social and legal settings where principled disagreements arise.

Trump puts all three at risk, so that a conservative legal analyst, such as Ed Whelan of National Review, now openly opposes many of Trump’s dubious decisions. These elements came together in a recent decision before the U.S. Court of International Trade in V.O.S. Selections v. U.S., which denied that Trump had authority under the International Emergency Economic Powers Act (IEEPA) of 1977 to impose any tariff he wants on any foreign nation, including his recent increase in the steel tariff. (I joined a powerful amicus brief prepared principally by Professor Michael W. McConnell of the Stanford Law School.) After Trump lost, his brief received favorable coverage from Adam Liptak. The title of the IEEPA refers to an emergency, and these words outside this statute have been long used to limit the ability of any public official, Trump included, to upset the ordinary rules of property, contract, and government authority that allow markets to function.

The classic statement on public necessity is Mayor of New York v. Lord (1837), which held that the government was justified in destroying private facilities to prevent “the spreading of fire, the ravages of pestilence, the advance of a hostile army, or any other great public calamity.” That common law history provides the constitutional backdrop and legislative history of the statute. Article I of the Constitution confers on Congress the power to “lay and collect Taxes, Duties, Imposts and Excises,” which was never delegated to the President. Indeed, the IEEPA was drafted to give the President only the power to “investigate, regulate or prohibit” various commercial transactions; tariffs are not mentioned at all. It is therefore hard to resist that unanimous Per Curiam decision that Trump was wrong to insist that the IEEPA “delegates these powers to the President in the form of authority to impose unlimited tariffs on goods from nearly every country in the world.” That judgment was later suspended, but not overturned by the Federal Circuit, pending review.

Trump’s case looks even weaker on the economics. Tariffs are taxes that slow down markets and skew trade in favor of domestic producers over foreign ones. The costs of tariffs were recently reviewed in a detailed study by Wharton Business School study which concludes:

Many trade models fail to capture the full harm of tariffs. PWBM projects Trump’s tariffs (April 8, 2025) will reduce long-run GDP by about 6% and wages by 5%. A middle-income household faces a $22K lifetime loss. These losses are twice as large as a revenue-equivalent corporate tax increase from 21% to 36%, an otherwise highly distorting tax.

Its conclusion is fortified by looking closely at the economic rationale that Trump used to claim these emergency powers: the “underlying conditions, including a lack of reciprocity in our bilateral trade relationships, disparate tariff rates and non-tariff barriers.” These long-term trends are not emergency conditions; his appeal to reciprocal trade relationships is in effect a recipe for economic disruption. Trump has claimed proudly that his tariffs have generated record amounts of money, over $23 billion in May alone. But these are tiny numbers compared to the $850 billion in general revenues collected in April. Worse, Trump’s optimistic views on reciprocity are flatly incorrect. In a word, trade in all discrete product markets flows downhill. The upstream provider in any two-party relationship receives a significant amount of money from the downstream party. However, those voluntary trades generate economic surpluses for both parties, regardless of the size of the localized deficit, even if the downstream party does not sell anything to the upstream one. Yet those local deficits are illusory when the entire trading sequence is considered. The upstream trader here must pay for its inputs. The downstream trader gets cash from its buyer. And so the deficits shrink. And the net deficit counts as an investment in the country that has the deficit. 

Trump’s bad behavior is evident from his tirade against Leonard Leo and the Federalist Society. He first berates the V.O.S. panel for stopping his “desperately needed tariffs,” and then lashes out:

I was new to Washington, and it was suggested that I use The Federalist Society as a recommending source on Judges. I did so, openly and freely, but then realized that they were under the thumb of a real “sleazebag” named Leonard Leo, a bad person who, in his own way, probably hates America, and obviously has his own separate ambitions. He openly brags how he controls Judges, and even Justices of the United States Supreme Court — I hope that is not so, and don’t believe it is! In any event, Leo left The Federalist Society to do his own “thing.” I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations. . . .

In this case, it is only because of my successful use of Tariffs that many Trillions of Dollars have already begun pouring into the U.S.A. from other Countries, money that, without these Tariffs, we would not be able to get.

Leo, a close personal friend, is now a co-chair of the Federalist Society and a distinguished figure in conservative philanthropy. Trump’s “Trillions” are only billions. And the “bad advice” included recommendations to appoint some of the most distinguished Justices and judges in the United States. So now that Trump has moved on, his latest pick for a judge, Emil Bove, is an unacceptable nominee. As Ed Whelan has written in National Review, Bove was the lead lawyer inside the Justice Department who sought to implement a plea bargain whereby the federal government would suspend prosecution of Eric Adams, but only so long as he cooperated politically with Trump. The incident led to the resignations of distinguished prosecutor Danielle Sasson and five others in protest, which in turn led to the decisive rejection of Trump’s case by  New York District Court Judge Dale Ho.

This incident is part of a larger pattern whereby, against classical liberal principles, Trump tries to elbow aside not just Congress but also the courts. Why wait for Congress to act, as long as he can issue executive orders to ban law firms from doing business in Washington, so long as they hire or represent individuals on his personal hit list? Some firms, like Paul, Weiss, made unhappy deals that lifted the prohibition in exchange for $40 million in gifts to Trump-backed conservative organizations. They now face huge public backlash for caving in. Yet, as a coerced party, it should refuse publicly to proceed with the gifts now that three courts have struck down these orders in harsh terms. Throughout, two fundamental norms govern. First, everyone is entitled to act as counsel or to receive advice from counsel, such that the Trump executive orders imposed a fearsome tax on constitutionally protected activities. Next, Trump’s deliberate viewpoint discrimination is a flagrant offense against the First Amendment.

Throughout, Trump relies on his peculiar version of the theory of the unitary executive.  But the Constitution’s text requires him “to take care that the law be faithfully executed,” which, uncontroversially, ensures that cabinet officers serve at his will. But by the same token, the “be” matters; faithful execution means that, like other presidents before him, he must ensure that officials in the executive branch follow the dictates of Congress. So if Congress establishes procedures to revoke grants issued by the National Science Foundation or the National Institute of Health, he cannot order subordinates to ignore these procedures. Similarly, the Commissioner of the Internal Revenue Service is bound by statute to exercise his independent judgment after notice and hearing in dealing with grant revocation.

The President cannot circumvent those requirements by ignoring the requirements of the Due Process Clause when he wishes to deprive any person (not just citizens) of their liberties by appealing to the Alien Enemies Act of 1798 to sidestep their review of his deportation orders. When his press secretary, Karoline Leavitt, denounces “a troubling and dangerous trend of unelected judges inserting themselves into the presidntial decision-making process,” she forgets that all judges are unelected and thus has made, not entirely by accident, the extreme claim that judicial review is not part of our constitutional structure.

Now put all the pieces together, and the president is at risk on all three fronts. He won’t survive politically unless he mends his way, and quickly.

Richard A. Epstein is a senior research fellow at the Civitas Institute. He is also the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, where he serves as a Director of the Classical Liberal Institute, which he helped found in 2013. Epstein is also the James Parker Hall Distinguished Service Professor of Law Emeritus and a senior lecturer at the University of Chicago.