Trump’s DOJ Seems Awfully Nervous About the Tariff Lawsuits

The plaintiffs’ response was short and curt. Perhaps the lawyers who drafted it knew the judges would see Sauer’s pseudo-intimidation tactics for what they are. Michael McConnell, the lead lawyer, noted that its contents were “improper” for a Rule 23(j) letter because the government “already cited the same events at argument.” Indeed, the oral arguments took place on July 31, a few days after the EU “trade agreement” was announced. McConnell disagreed about the need for a stay at all and argued for it to be a narrow one if granted because the plaintiffs “face imminent and ongoing irreparable harm to their businesses from the challenged tariffs.”

“If the Court is inclined to consider the substance of the letter, there is no basis for its declaration that there is ‘no substitute’ for ‘the tariffs and deals that President Trump has made,’” he continued. “Even without IEEPA, the president can obtain ex ante authority to enter into trade agreements, see 19 U.S.C. § 4202(a), or submit agreements for congressional approval, including via fast-track procedures, as prior presidents have done, see 19 U.S.C. § 4501 (implementing the U.S.-Mexico-Canada Agreement).”

In other words, Trump can (and did, during his first term) pursue his trade agenda through the lawful mechanisms that Congress intentionally created to give presidents flexibility when negotiating with other countries. What he cannot do is use IEEPA to arbitrarily enforce massive tariffs on most of the American economy; not even to coerce U.S. trading partners into what appear to be largely performative trade negotiations.