Thank Goodness for Libertarian Law Firms

By Dominic Pino

Thursday, May 29, 2025

 

On April 2, Donald Trump unilaterally imposed tariffs on all imports, in violation of the Constitution. The law he cited to do so, the International Emergency Economic Powers Act, had never before been used to impose tariffs. Article I of the Constitution clearly grants the tariff power to Congress, which was not involved in creating the original policy.

 

 The unconstitutionality was plain as day, but the president went through with the policy anyway. The question became: Who will do something about it?

 

One might think Congress would. Its authority was usurped, and it has the legislative power to do something about it. It could assemble a veto-proof majority to force the president’s hand.

 

That assumes Congress is actually interested in using its constitutional authority. It isn’t. A handful of lawmakers introduced resolutions to terminate the bogus national emergencies that Trump declared to impose the tariffs, and those efforts failed.

 

With Congress impotent, one might think that business groups would challenge the tariffs. Some of America’s largest corporations, including Walmart and Amazon, rely heavily on international trade. They would face enormous tax bills and would likely have to pass the costs on to their price-sensitive customers. Cash-strapped small businesses that import could face extinction.

 

Yet there were no lawsuits from Walmart, Amazon, the Chamber of Commerce, or the National Federation of Independent Business. Big businesses seem to have calculated that they are better off trying to kiss up to Trump than to challenge him. Small businesses often lack the resources to bring a major lawsuit on their own.

 

Therefore, the most likely candidates to stop the unconstitutional tariffs are out of commission. Thankfully, there are libertarian public-interest law firms to pick up the slack.

 

The case the Trump administration lost at the U.S. Court of International Trade was brought by Liberty Justice Center. Another case challenging the tariffs was brought by the Pacific Legal Foundation. Yet another was brought by the New Civil Liberties Alliance (NCLA). All three of these libertarian public-interest law firms are doing jobs that others should have done but didn’t; namely, challenging blatantly unconstitutional actions by the president.

 

Pacific Legal has been around since 1973, but Liberty Justice Center and NCLA are both less than 20 years old. They have sprung up in response to the government’s tendency to behave unconstitutionally until being told not to by the courts. And for the courts to have a chance to do that, someone needs to sue.

 

Conservatives have rightly praised the efforts of groups such as the Federalist Society in shaping the judiciary, and the actions decisions of originalist judges in shaping the law. The less acknowledged heroes are the libertarian law firms that find and represent the plaintiffs that make these cases possible in the first place.

 

Janus v. AFSCME, which made the entire public sector right-to-work and ended government unions’ ability to take workers’ wages to support political speech, would not have happened without Liberty Justice Center representing Illinois public employee Mark Janus. Overturning Chevron deference would not have happened without NCLA representing fishing businesses that were harmed by a regulation. Pacific Legal has won 18 Supreme Court cases on subjects ranging from land use to free speech.

 

These victories build on each other, as was evident in Wednesday’s tariff decision. In explaining why the Trump administration’s argument that the tariff orders were not justiciable was wrong, the Court of International Trade cited Loper Bright, the case that overturned Chevron deference. It also stated that the nondelegation doctrine and the major questions doctrine, two of the doctrines most strongly advocated by these libertarian law firms, are “useful tools for the court to interpret statutes so as to avoid constitutional problems” and partially relied on them to strike down the tariffs.

 

Nearly every argument these firms make in court is a variation on this simple theme:

 

1.     Hey, the government did something unconstitutional that is hurting people.

 

2.     The government should really follow the Constitution.

 

3.     Please read the Constitution and tell the government to knock it off.

 

The government, in many cases, won’t knock it off unless it is challenged, even if its behavior is blatantly unconstitutional, as it was with these tariffs or with Biden’s student loan plans or any number of other cases. If Congress won’t stand up to the president and big business is too cozy with government to pick a fight, it’s good to know that a handful of libertarian lawyers with a few obscure small-business clients can point to the Constitution and win.