Dereliction of Duties

July 15, 2025

By Timothy Harper

Conservatives should welcome a court ruling striking down the President’s tariffs. The Court of Appeals for the Federal Circuit in Washington, D.C. will hear oral arguments on July 31 in the consolidated cases V.O.S. Selections v. Trump and Oregon v. Trump. These cases are on appeal from the United States Court of International Trade after a three-judge panel for that court unanimously found that the President lacked authority to launch the ongoing tariff war. Many on the right have either chosen to side with the President or to remain silent, presumably for fear of alienating the administration. Neither course of action is consistent with American conservatism.

American conservatism is fundamentally about ordered liberty. Conservatives are those who understand that liberty depends on government to secure the pre-existing, God-given rights of every individual, and that without order—that is, without the people exercising virtue and self-restraint—liberty cannot survive. This theory of political and moral life, expressed in the famous second paragraph of the Declaration of Independence, is what elevates American conservatism above the insular parochialism into which “conservatism” can so easily slide.

Our Constitution is an inherently conservative document because it is designed to facilitate government that can stave off tyranny without itself becoming a threat to liberty. How can the government, as James Madison put it in Federalist 51, be enabled “to control the governed,” while also “oblig[ing] it to control itself”? According to Madison, in two ways. First, by making the government accountable to the people, and second, by vesting the government’s powers in separate branches and empowering them to check the abuses of one another.

The Framers vested the most important and dangerous power of government, the legislative power, in Congress, a body composed of the representatives of the people in the House, and the representatives of the states in the Senate. The legislative power is the most dangerous because it is the power to make laws restricting the liberty of the people, the very thing government exists to secure. The difficulty of the legislative process is a feature, not a bug, because it guards against what Alexander Hamilton in Federalist 73 called a “want of due deliberation.”

Among the most dangerous of legislative powers is the power of taxation. As Chief Justice John Marshall wrote, “the power to tax involves the power to destroy.” It was “taxation without representation” from across the Atlantic that sparked the Revolutionary War, and which was among the grievances against King George III listed in the Declaration of Independence.

Given this history, it is unsurprising that the Constitution reserves the taxing power to Congress. Article I, Section 8 lists the core legislative powers of Congress, beginning with the power to “lay and collect Taxes, Duties, Imposts and Excises.” During the ratification debates, some argued that the national government should have only the power of “internal” taxation, that is taxation internal to the nation, but not “external” taxation, the power to tax imports and exports. In Federalist 30, Hamilton responds to the argument that the national government should have only external taxing power but never expresses any doubt that “external” taxes are, indeed, taxes.

Taxation is also legislative in nature. As Justice Neil Gorsuch explained in his 2019 dissent in Gundy v. United States, legislative power is the power to create general rules that are binding on private persons. In other words, if the national government wants to tell a private entity that it must do something or that it cannot do something, that rule must come from Congress.

Tariffs, which require Americans who wish to purchase foreign goods to pay the United States government a fee before collecting those goods, are undeniably taxes and are thus solely the prerogative of Congress.

However, since the progressive movement of the early twentieth century, more and more of Congress’s legislative power has been illegitimately transferred to the executive branch. Congress has repeatedly abdicated its responsibility to legislate, instead inviting administrative agencies to do the dirty work. As a result, the government has promulgated countless arbitrary rules that benefit special interests at the expense of liberty.

In continuation of that practice, the President has, since February, exercised Congress’s taxing power by unilaterally setting and modifying tariff rates on imports from countries around the world. The President’s claim that Congress empowered him to set tariff rates in the International Emergency Economic Powers Act (IEEPA) is bad statutory interpretation. More fundamentally, if it were true, IEEPA would violate the Constitution’s basic structure.

Congress may not delegate its powers to any other branch or entity. As explained in detail in Advancing American Freedom’s amicus brief in V.O.S. Selections, Congress works for “We the People,” and is therefore subject to the law established by the Constitution. Congress has no more power to delegate its legislative power to another branch than your electrician has authority to delegate his responsibilities to your plumber.

The Supreme Court has recognized this principle of nondelegation for nearly a century, although it has regrettably applied this “nondelegation doctrine” loosely. Nonetheless, the President’s tariffs fall far outside the boundaries of even the Court’s permissive application of that doctrine.

When the Executive claims legislative power for itself, the Constitution provides three remedies: popular accountability, congressional action, and judicial review. According to Madison in Federalist 51, “a dependence on the people is. . . the primary control on the government.” For decades, however, the people have allowed Congress to abdicate its law-making responsibility to the executive branch. Congress, too, having created the problem, is now unlikely to curtail the President’s assertion of power in a timely manner, if at all. That same legislative process that was meant to protect the liberty of the people now hampers legislative action to defend liberty.

Two of three checks have failed to curtail executive abuses; only judicial review remains. As Hamilton explained in Federalist 78, limitations on government authority “can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this,” Hamilton continues, “all the reservations of particular rights or privileges would amount to nothing.” Contrary to the recent claims of some on the right, the idea that courts have both the ability and the responsibility to throw out illegal government action was not created by Chief Justice John Marshall in Marbury v. Madison in 1803. The idea pre-existed Marshall and Hamilton, too.

Thankfully, conservative efforts have made the federal judiciary more committed to constitutional structure than it has been in living memory. For decades, conservatives have rightly seen the restoration of constitutional structure as their chief political and legal project. Seeing both a need and an opportunity, conservatives, led by the Federalist Society, sought to restore the judicial branch to its rightful role. That conservative legal movement has seen almost unbelievable success with the Supreme Court, three members of which were appointed by the President in his first term, delivering victories for the rule of law in major cases like Loper Bright Enterprises v. Raimondo and Dobbs v. Jackson Women’s Health.

Today, however, many on the right are deserting the fight, either sitting on the sidelines or actively criticizing courts for performing their constitutional role. In American political life, conservatives stand virtually alone in calling for the virtue that is necessary for ordered liberty. To abandon the two things that keep us free—constitutional structure and private virtue—is to abandon American conservatism.

The creation of tariffs is a power reserved exclusively to Congress, as the Constitution and the Federalist Papers make abundantly clear. The President’s tariffs are not the mere execution of law passed by Congress. They represent an ultra-vires creation of law by the executive. Courts have a duty to strike down such lawless unilateral action and conservatives should welcome their doing so.

Almost 100 years ago, celebrating the 150th anniversary of the signing of the Declaration of Independence, President Calvin Coolidge explained that those who would forsake the principles of 1776 and the Declaration—that “all men are created equal,” that “they are endowed with inalienable rights,” that “governments derive their just powers from the consent of the governed”—for something “more modern . . . are reactionary” adopting ideas “not more modern, but more ancient, than those of the Revolutionary fathers.”

Those to whom “more ancient” ideas than equality before the law and individual rights sound appealing might consider moving to any other nation on earth.  For the rest, the Constitution, upheld by a virtuous people, is the best hope the world ever has had, and likely ever will have, to establish the principles of the Declaration in law.

Conservatives are the only guardians of ordered liberty in the world; the only defenders against tyranny and anarchy; the only ones who have a solution to the war of all against all. The outcome of every fight for constitutional rule in America is a fight over a step that will be taken either toward freedom and prosperity or toward the end of America’s experiment in self-government. Conservatives cannot wait on the sidelines to stand for the Constitution when the opponent of freedom has a “D” next to his name. To do so is to abandon conservatism and to invite tyranny.

Timothy Harper is counsel for Advancing American Freedom.