The right is breaking ranks over Trump and his tariffs

The Guardian

a day ago

Donald Trump's trade war has become his quagmire: legal, economic and political. On 28 May, the court of international trade ruled his tariffs exceeded his constitutional authority. Point by point, the decision decimated Trump's arguments as flimsy and false, implicitly castigated the Republican Congress for abdicating its constitutional responsibility, and reminded other courts, not least the supreme court, of the judicial branch's obligation to exercise its authority regardless of the blustering of the executive and the fecklessness of the legislative branches.
Trump's tariffs, along with his withdrawal of active support for Ukraine and passivity toward his strongman father figure Vladimir Putin, have broken the western alliance, forcing the west to make its own arrangements with China, and cementing the idea for a generation to come that the United States is an untrustworthy and unstable partner.
On the economic front, Trump's tariffs have already begun to increase inflation, shutter trade, devalue the dollar, and undermine manufacturing. They will soon create shortages of all sorts of goods, ruin small business, and force layoffs that bring about stagflation that has not been seen since the 1970s, which was then the result of an external oil shock, not self-harm. On 3 June, the Organization for Economic Cooperation and Development reported that as a result, principally, of Trump's tariffs, the US will suffer a decline in the rate of growth from what had been forecast this year. 'Lower growth and less trade will hit incomes and slow job growth,' the OECD stated.
As a political matter, besides being unpopular, Trump's tariffs, in combination with his assaults on the institutions of civil and legal society, have drawn out the most intelligent and skillful members of the conservative legal establishment, who themselves have been some of the most crucial players in the rise of the right wing, to man the ramparts against him. These are not the familiar Never Trumpers, but newly engaged and potentially more dangerous foes.
While corporate leaders uniformly abhor Trump's tariffs, they have stifled themselves into a complicit silence on the road to serfdom. But Trump's new enemies coming from the conservative citadel of the Federalist Society are filing brief after brief in the courts, upholding the law to halt his dictatorial march.
Trump naturally cannot help but turn everything he touches into sordid scandal. After announcing his 'Liberation Day' tariffs, which tanked the stock market, Trump declared a pause during which he promised he would sign, seal and deliver 90 deals in 90 days. But he has announced only a deal with Britain. Most of the deals Trump has seen have been with the Trump Organization. Under the shadow of a threatened 46% tariff, Vietnam, after a visit from Eric Trump, granted a $1bn Trump Tower in Ho Chi Minh City and a $1.5bn golf club and resort near Hanoi with 'two championship golf courses,' relative crumbs alongside the billions the Trump family has accrued from across the Middle East, not to mention the $400m jet that his team solicited from Qatar to serve as his palatial Air Force One.
Standing before the white marble plinth of the Unknown Soldier at Arlington national cemetery on Memorial Day, 26 May, after reading prepared remarks about 'our honored dead' to a gathering of Gold Star families, Donald Trump fell into a reverie about his divine destiny. 'I have everything,' he said. He spoke about the parade of troops and tanks he has ordered for 14 June, his 79th birthday, which happens to coincide with the date that George Washington created the Continental army. 'Amazing the way things work out. God did that, I believe that too. God did it.'
Two days after Trump had mused about his election by heaven to possess 'everything', the court of international trade issued what the Wall Street Journal called the 'ruling heard 'round the world … proving again that America doesn't have a king who can rule by decree''.
The US court of appeals for DC then temporarily stayed the ruling while it considered the case. But the trade court's decision to deny Trump his toys was comprehensive, blistering and devastating. Now, Trump's trade war is his Vietnam, a quagmire of his own.
Trump's entire program dances on the head of his tariffs. By fiat, without congressional approval, he has willfully invoked the International Emergency Economic Powers Act as cover for his helter-skelter gyrations to reshape the global economy according to his desire for domination of the Earth. He has further explained that his tariffs are necessary to pay for the vast tax cuts for the wealthy in his budget bill that would increase deficits. He claims that the tariffs will replace the revenue raised from income tax, fixed in the constitution by the 16th amendment, ratified in 1913. Without tariffs on the scope he projects his dream house of cards collapses. With his tariffs even as his stated minimal goal he blows up the world.
The court of international trade, a court based on specialized expertise, whose judges have lifetime appointments, flatly stated that Trump's use of the emergency law under which he claimed his authority does 'not permit the president to impose tariffs in response to balance-of-payments deficits', 'exceeds any tariff authority delegated to the president', 'would create an unconstitutional delegation of power', and is 'contrary to law'.
Having ruled that Trump's worldwide tariffs are illegal, the court deemed his 'trafficking tariffs' imposed on Canada and Mexico also lawless. Trump has asserted them on a contrived national security rationale of preventing the importation of fentanyl. But the court stated that Trump's 'use of tariffs as leverage … is impermissible not because it is unwise or ineffective but because … [the federal law] does not allow it'. Thus, the court concluded in both instances, 'the worldwide and retaliatory tariff orders exceed any authority granted to the president … to regulate importation by means of tariffs. The trafficking tariffs fail because they do not deal with the threats set forth in those orders.'
The trade court's ruling suddenly exposed the extent to which Trump's relationship with the conservative legal movement is unraveling. The fissure runs deeper and wider than name-calling. Trump's trade war has morphed into a widespread civil war within the right with the core of the conservative legal establishment resisting him.
Trump's venomous social media posts against Leonard Leo, the Federalist Society co- chairman and rightwing powerhouse, reads like a memoir of an ingenue taken advantage of in the big city by strangers. 'I was new to Washington,' Trump explained, '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.'
Slowly, Trump has come to the realization that this Leonard Leo 'openly brags how he controls Judges, and even Justices of the United States Supreme Court'. Trump was revealing that Leo understood his power beyond his influence over Trump on appointments. 'Backroom 'hustlers' must not be allowed to destroy our Nation!' He is victim of a con, Donald Chump.
'Talk about friendly fire,' editorialized the Wall Street Journal. But there was more to the story than Trump revealed, which the Journal's editorial page, Leonard Leo's friend in court as it were, happily provided. The judge on the trade court whom Trump appointed and blames on Leo, Timothy Reif, was in fact, according to the Journal, 'recommended to the White House by Robert Lighthizer, who was Mr Trump's first-term trade representative. Mr Leo had nothing to do with it.' Perhaps Trump is suffering from memory loss.
Trump bellowed that the reason for the trade court's ruling must be 'purely a hatred of 'TRUMP'? What other reason could it be?' 'Well,' suggested the Journal, 'how about the law and the constitution?' After Leo had been the one to give Trump the names of the three justices he appointed to the supreme court who made possible the infamous decision granting him 'absolute immunity' for 'official acts' that enabled his evasion of prosecution during the 2024 campaign, this was a thick and rich ragu.
The Journal also rushed to Leo's side with a podcast featuring John Yoo, who as deputy assistant attorney general under George W Bush and the author of the notorious Torture Memos. Yoo said it was 'truly outrageous to accuse Leonard Leo, one of the stalwarts or the conservative movement, of being something like a traitor'. Yoo stated: 'Why would President Trump turn his back on one of his greatest, if not his greatest achievements from the first term, appointing three justices?' Indeed, Yoo was right that Leo had dictated Trump's choices, exactly as Trump confessed. What neither disclosed is that it was the price Trump paid for a political armistice with the mighty rightwing Koch political operation. Some deal, some art.
And Yoo added in an admission of truth-telling about the supreme court's invention of absolute presidential immunity for 'official acts': 'If it weren't for Federalist Society judges, he would be in jail right now because it was the Roberts court that said former presidents just can't be prosecuted for crimes.'
But to Trump, the betrayal is cutting. The trade court's ruling against him echoed the amicus brief filed by a bipartisan group of legal eminences that included leading conservative lights. There was Steven Calabresi, professor at Northwestern Law School, the co-founder and co-chairman of the Federalist Society, and the chief theorist of the conservative doctrine of the 'unitary executive.' There was Michael W McConnell, former federal judge, Stanford law professor, and a chief defender of religious right lawsuits. There was Michael Mukasey, former federal judge and George W Bush's attorney general. There was Peter Wallison, President Reagan's White House counsel. They all signed the brief stating: 'The president's tariff proclamations bypass the constitutional framework that lends legitimacy and predictability to American lawmaking.'
The breaking of ranks on the right is not isolated. Other well-known members of the conservative legal establishment have done more than submit an amicus brief. They have become counsels to some of the most important institutions in Trump's crosshairs – Harvard University, National Public Radio and the WilmerHale law firm.
William Burck and Robert Hur are co-counsels representing Harvard in its suit against the Trump administration order denying its enrollment of international students unless the university submits to his draconian control over its academic processes.
Burck, former deputy White House counsel to George W Bush and a current member of the board of directors of the Fox Corporation, is the head of 'one of a few top US firms that seemed well placed not only to avoid Donald Trump's wrath but also benefit from connections to the president's inner circle,' according to the Financial Times. He was hired to be an ethics adviser to the Trump Organization – that is, until he chose to represent Harvard. Trump ranted against him: 'Harvard is a threat to Democracy, with a lawyer, who represents me, who should therefore be forced to resign, immediately, or be fired. He's not that good, anyway, and I hope that my very big and beautiful company, now run by my sons, gets rid of him ASAP!' Eric Trump, who had previously called Burck 'one of the nation's finest and most respected lawyers', wielded the executioner's axe for his father.
Hur had been appointed the US attorney for Maryland by Trump and served as the special counsel investigating President Biden's alleged mishandling of classified documents stored in boxes in his home's garage. Hur filed no charges, but said of Biden that he was 'a sympathetic, well-meaning, elderly man with a poor memory'.
In Harvard's suit against the Trump administration, Burck and Hur state that its actions against the university are 'a blatant violation of the first amendment, the due process clause, and the Administrative Procedure Act. It is the latest act by the government in clear retaliation for Harvard exercising its first amendment rights to reject the government's demands to control Harvard's governance, curriculum, and the 'ideology' of its faculty and students. The government's actions are unlawful for other equally clear and pernicious reasons.'
For its representation in its suit against the Trump administration, which seeks to slash its funding, National Public Radio has hired Miguel Estrada, a star of the conservative legal firmament, whose nomination to the federal bench by George W Bush was blocked by Senate Democrats in 2002. According to the NPR complaint, Trump's action 'violates the expressed will of Congress and the first amendment's bedrock guarantees of freedom of speech, freedom of the press, and freedom of association, and also threatens the existence of a public radio system that millions of Americans across the country rely on for vital news and information'.
When Trump issued executive orders against big law firms that had somehow offended him, coercing their surrender to his whim, one of those firms, WilmerHale, subject to such an order for having had as a senior partner Robert Mueller, the former FBI director who headed the investigation into Russian influence in the 2026 election, did not cave. Instead, it hired Paul Clement, George W Bush's solicitor general, who has argued on behalf of many of the most controversial conservative causes before the supreme court, including against the Defense of Marriage Act and against the Affordable Care Act, or Obamacare.
Citing the example of John Adams, who defended British soldiers in the Boston Massacre, Clement argued against the Trump administration that 'British monarchs' practice of punishing attorneys 'whose greatest crime was to dare to defend unpopular causes' – which threatened to reduce lawyers to 'parrots of the views of whatever group wields governmental power at the moment' – helped inspire the Bill of Rights'.
Then, Ed Whelan, who holds the Antonin Scalia Chair in Constitutional Studies at the rightwing Ethics and Public Policy Center, and is a close surrogate for Leonard Leo, savaged Trump's nomination of Emil Bove, who was his personal attorney in the New York hush money trial and whom he had appointed as deputy attorney general, to be a judge on the US court of appeals for the third circuit.
Bove ordered corruption charges dropped against New York City mayor Eric Adams, which a federal judge said 'smacks of a bargain: dismissal of the indictment in exchange for immigration policy concessions'. The US attorney for Manhattan, Danielle Sassoon, a conservative Republican, resigned in protest, stating that the deal 'amounted to a quid pro quo' and that Bove had ordered her not to take notes during meetings. Seven members of the public integrity section of the justice department also resigned.
Whelan, writing in the conservative magazine National Review, called Bove Trump's 'henchman', decried his 'bullying mishandling' of the Adams case, and suggested he might be put on the federal bench to 'position him well for the next supreme court vacancy. A rosier possibility is that Bove is tired of being Stephen Miller's errand boy.'
Now, Trump is worried about what conservatives on the supreme court might rule when presented with the trade court's decision. He rails in private against Justice Amy Coney Barrett, whom he appointed to the cupreme court, for her unexpected occasional independence. The Journal, with the inside track, writes that 'the White House boasts it will win at the supreme court, but our reading of the trade court's opinion suggests the opposite. Mr Trump's three court appointees are likely to invoke the major-questions precedent' – which would uphold the trade court and force Trump either to bring his policy before the Congress or drop it.
Trump is enraged that his betrayers from the Federalist Society have claimed roles in the resistance. He has no loyalty to anyone or thing, but demands personal fealty, certainly now above any ideological litmus tests. The only ideological tests are to be imposed on universities. Trump has learned his lesson. In his insistence on obedient judges, Trump is returning to his first principle as he was taught in the beginning by his mob attorney Roy Cohn, who said: 'Don't tell me what the law is, tell me who the judge is.'
Sidney Blumenthal, a former senior adviser to President Bill Clinton and Hillary Clinton, has published three books of a projected five-volume political life of Abraham Lincoln: A Self-Made Man, Wrestling With His Angel and All the Powers of Earth