By Jonah Goldberg
Wednesday, June 04, 2025
Last week, the Court of International Trade delivered a
blow to Donald Trump’s global trade war. It found that the worldwide tariffs
Trump unveiled on “Liberation Day” as well his earlier tariffs pretextually
aimed at stopping fentanyl coming in from Mexico and Canada (as
if) were beyond his authority. The three-judge panel was surely right about
the Liberation Day tariffs and probably right about the fentanyl tariffs, but
there’s a better case that, while bad policy, the fentanyl tariffs were not
unlawful.
Please forgive a lengthy excerpt of Trump’s response
on Truth Social, but it speaks volumes:
How is it possible for [the CIT
judges] to have potentially done such damage to the United States of America?
Is it purely a hatred of ‘TRUMP?’ What other reason could it be? 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. … 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. This is something that
cannot be forgotten!
Let’s begin with the fact that Trump cannot conceive of a
good explanation for an inconvenient court ruling other than Trump Derangement
Syndrome. It’s irrelevant that the International Emergency Economic Powers Act
(IEEPA), the 1977 law the administration invoked to impose the relevant
tariffs, does not even mention the word “tariff” or that Congress never
envisioned the IEEPA as a tool for launching a trade war with every nation in
the world, “Penguin
Island” included.
Also disregard the fact that the decision was unanimous and only one of the
three judges was appointed by Trump (the other two were Reagan and Obama
appointees).
Trump is the foremost practitioner of what I call Critical
Trump Theory—anything bad for Trump is unfair, illegitimate, and proof that
sinister forces are rigging the system against him. No wonder then that Trump
thinks Leonard Leo, formerly a guiding light at the Federalist Society, the
premier conservative legal organization, is a “sleazebag” and “bad person.”
Note: Leo is neither of those things.
But Trump’s broadsides at Leo and the Federalist Society
are portentous. Because Congress is AWOL, refusing to take the lead on trade
(and many other things) as the Constitution envisions, it’s fallen to the
courts to restrain Trump’s multifront efforts to exceed his authority. That’s
why the White House is cynically denouncing “unelected” and “rogue” judges on
an almost daily basis and why Trump’s political Beria, Stephen Miller,
is incessantly ranting about a “judicial
coup.”
The supreme, and sometimes seemingly sole, qualification
for appointments to the Trump administration has been servile loyalty
to Trump. But that ethos is not reserved for the executive branch. Law firms,
elite universities, and media outlets are being forced to kneel before the
president. Why should judges be any different?
Trump has a history of suggesting “my
judges”—i.e. his appointees—should be loyal to him. That’s why he recently
nominated Emil Bove, his former personal criminal lawyer turned political
enforcer at the Department of Justice, for a federal judgeship.
The significance of Trump’s attack on Federalist Society
and Leo, for conservatives, cannot be exaggerated. The legal movement
spearheaded by the Federalist Society has been the most
successful domestic conservative project of the last century. Scholarly,
civic-minded and principled, the Federalist Society spent decades developing
ideas and arguments for recentering the Constitution in American law. But now
Trump has issued a fatwa that it, too, must bend the knee and its principles to
the needs of one man. The law be damned, ruling against Trump is ingratitude in
his mind.
Speaking of ingratitude, the irony is that the Federalist
Society deserves a lot of credit—or blame—for Trump getting elected in the
first place. In 2016, the death of Antonin Scalia left a vacancy on the Supreme
Court. Many conservatives did not trust Trump to replace him. To reassure them,
Trump agreed to pick from a list of potential replacements crafted by the
Heritage Foundation and Federalist Society. That decision arguably convinced many
reluctant conservatives to vote for him.
In the decade since, the Heritage Foundation has
dutifully reinvented
itself in Trump’s image. The Federalist Society stayed loyal to its
principles, and that’s why the Federalist Society is in Trump’s crosshairs.
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