Steven Calabresi of Northwestern University and Samuel Estreicher of New York University join Jeffrey Rosen to discuss the statutory authority for President Trump’s tariffs and whether they violate federal law or the Constitution.
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This episode was produced by Samson Mostashari and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Samson Mostashari and Gyuha Lee.
Participants
Samuel Estreicher is Dwight D. Opperman Professor of Public Law at New York University School of Law. He is also the director of NYU Law’s Center for Labor and Employment Law and its Institute of Judicial Administration. Estreicher is a nationally preeminent scholar in U.S.- and international-comparative labor and employment law and arbitration law.
Steven G. Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law. He is the co-founder and co-chairman of the Federalist Society’s Board of Directors. Calabresi worked in the West Wing of President Ronald Reagan’s White House; was a special assistant for Attorney General Edwin Meese III; and clerked for Justice Antonin Scalia on the Supreme Court and for Judges Robert H. Bork and Ralph K. Winter on the federal courts of appeals. Calabresi is the co-author of The Meese Revolution: The Making of a Constitutional Moment (2024)
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Samuel Estreicher & Andrew Babbitt, “Are Tariffs an Emergency Power?,” Lawfare Blog (April 3, 2025)
- Steven Calabresi, “President Trump's New Tariffs Are Unconstitutional,” Volokh Conspiracy (April 5, 2025)
- Complaint for Injunctive and Declaratory Relief, Emily Ley Paper v. Trump, 3:25-cv-00464 (N.D. Fla., April 3, 2025)
Excerpt from interview: Steven Calabresi believes Trump’s tariffs violate the major questions doctrine and should be blocked by Congress.
Steven Calabresi: The Supreme Court in the last four years has developed something called the major questions doctrine. And the major questions doctrine is a doctrine of statutory interpretation where the court construes ambiguous statutory language not to allow the president or executive and independent agencies to adopt rules as to something that is a major question that should properly be addressed by Congress. So for example, in West Virginia, against EPA, the Supreme Court held that President Biden couldn't define carbon dioxide as a pollutant and impose a trillion dollar climate change plan unilaterally. He had to go through Congress to do that. The court also held that President Biden couldn't declare Covid an emergency and have OSHA require all employers to force their employees to get vaccines against Covid in a world where many people don't want to be vaccinated against Covid. I think incorrectly, the Supreme Court also said that President Biden couldn't use the COVID emergency to prevent landlords from evicting tenants who weren't paying their rent because that was a major question that required congressional action. And the Supreme Court held that President Biden couldn't forgive all student loan debt, which involved billions and billions of dollars, because the statute in question only allowed forgiving student loan debt if there was a terrorist attack and there hadn't been one.
And so the court said President Biden had to go to Congress for that. The same thing applies to Trump's tariffs, including the reduced tariffs that are currently in place. Congress has the power to impose these kinds of tariffs if it wants to. But we fought the American Revolution over the principle of no taxation without representation. And it's representation in the legislature which has the power to tax, which is critically at stake. So my position is that the Trump tariffs are a violation of the major questions doctrine. They're unauthorized by statute. If they were authorized by statute, there would be a non delegation doctrine problem. And these tariffs are completely unlawful. And I think the district judge in the Northern District of Florida should, in my opinion, issue a nationwide injunction against all of President Trump's tariffs.
Excerpt from interview: Samuel Estreicher supports a narrow approach to tariffs and presidential authority, cautioning against broad challenges.
Samuel Estreicher: The major question is the option to the kinds of things they don't like as opposed to the kinds of things they like. It's hard to predict. In general, I'm a big believer in trying to find agreement, especially in a collegial court. So I do think there are moves that can be made with respect to the statute. And again, I do think there's a non delegation problem here and it would have to be limited to tariffs because I think there'll be a reluctance to if we use MQD or non delegation, there's going to be a reluctance to say anything that will limit the president's authority to use sanctions in Libya wherever he wants to use them, even though they may not be unusual and extraordinary threats. It's the very same criticism that we might make of the tariffs if they limit it. I think the way the lawyers should do this, I don't know Professor Hamburger's outfit that well, but the way the lawyers should do this is a narrow decision here along the lines that Steve and I have suggested a textual argument, not only looking at the consequences of the tariffs, which I think are real, but bringing to bear some of the historical practice on tariffs and these other statutes.
I think they should inform how we read the IEEPA. We have very specific statutes. This is an area where the President does not have inherent authority, in my view. He has inherent authority to repel invasion. He has inherent authority to deal with a concrete threat against our allies, that sort of thing. But he doesn't have inherent authority on the economic sphere here, even though it has a foreign relations aspect to it. On non delegation, by the way, the Supreme Court has never disturbed a case called Field vs. Clark, which is a tariff case, by the way, where the Supreme Court required that there be at least an intelligible principle informing what the President is doing. I think it's an important case. There is this case, Curtis Wright, which was way overwritten by Justice Sutherland, way overridden. That's one of the things we'll be doing in our article. And we'll show through all the statutes he cites in the foreign affairs area that these were in fact bounded delegations. So there's a degree of, you know, Curtis Wright will also need to be modified a little bit. There's a lot of work to be done. I wouldn't raise any of these issues.
The Curtis Wright issues in this litigation might leave it to other folks, but I would make as narrow an argument as possible. I think it can be made. So you have the misfortune of bringing two people on here who basically agree and we are trying to find areas of disagreement to invoke the major questions doctrine against the President is, in my view, not likely because it's going to have consequences for other decisions of the president. Everything is going to be a departure to some extent. I'm doing a little piece on whether President Trump's taking people out of the taking policy making employees out of the protected service into the accepted service. Is that a major question? Well, it's new. It's definitely a departure, but the statute seems to authorize it anyway. There are implications across the board, and some of these implications will be favored by the three liberals on the court. I do agree, by the way, that the center of the court, in my view, is the chief, Brett Kavanaugh and our new justice from Notre Dame. And so that's where the arguments have to be pitched to those three justices, Justice Barrett and I think the arguments can be pitched to the three of them.
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