A key player in the conservative legal movement is in unlikely alignment with congressional Democrats over President Donald Trump’s tariffs — highlighting the growing divide between Trump and Republicans who’ve long advocated for free trade and small government.
The first major legal challenge against Trump’s legal authority to implement sweeping new tariffs came from the nonprofit law firm New Civil Liberties Alliance, which is funded in part by groups linked to conservative legal activist Leonard Leo and headed by a former Koch Industries attorney.
NCLA successfully fought to get Chevron deference overturned, shifting decision-making authority about ambiguous laws away from government agencies and into the hands of Congress and judges — which was considered a massive win for the conservative, deregulatory legal movement.
While outside watchers were quick to note the significance of a legal challenge coming from a more conservative-aligned group — rather than previous high-profile legal challenges brought by groups like the ACLU and Democratic attorneys general — NCLA’s attorneys insist their case is not a political statement. (The firm describes itself as nonpartisan and challenged Trump in his first administration, though this is the firm’s first major challenge to Trump in his second term.)
“We’re interested in these constitutional issues. I know the media focuses on the political issues and who’s pro-Trump and who’s anti-Trump, and that’s not our metric,” Andrew Morris, senior litigation counsel at NCLA, told NOTUS.
“It’s a president overreaching based on emergency authority, and that’s a long-running issue, right? The next president could come in — a President Harris — and declare a climate emergency,” Morris added. “So this is a principle that applies no matter who the president is.”
Close watchers of constitutional and administrative law say the split with Trump from a right-aligned legal firm is significant.
“It’s exposing a bit of a cleavage between political conservatives and legal conservatives, where the latter are actually committed to some of these nondelegation ideas,” Harvard constitutional legal scholar Nicholas Stephanopoulos told NOTUS. “All the political conservatives are cheering or at least acquiescing to what Trump is doing, but then you have a more ideological group backed by the Koch brothers and Leo that is against higher taxes, dramatic regulatory actions — even if they’re actions taken by Republicans.”
(A spokesperson for an organization founded by Charles Koch, Stand Together, which has has provided funding to NCLA, wrote in a statement, “We aren’t involved in this NCLA case.”)
NCLA’s case argues that the legal rationale Trump cited for putting the tariffs in place, the International Emergency Economic Powers Act, only allows for certain emergency actions like sanctions, not tariffs. It does not take a position on whether or not there is a state of emergency, simply that an emergency doesn’t grant this power.
Trump has used the same IEEPA rationale for all his tariffs, so the outcome of the litigation could have sweeping implications for any presidential tariff plans now or in the future. That also means the 90-day pause for most countries Trump announced on Wednesday won’t have any impact on the case.
But even if the firm claims it wants to stay out of politics, its argument echoes what Democrats have been shouting for weeks: Trump is overstepping presidential authority.
And the wide-reaching market backlash to tariffs pushed some congressional Republicans to back efforts to rein in presidential power, too. Seven Republicans signed onto a bill sponsored by Sen. Chuck Grassley that would require congressional approval of executive branch tariffs. On Tuesday, Senate Finance Committee Democrats and one Republican, Sen. Rand Paul, also issued a resolution to repeal Trump’s tariffs.
“It’s our constitutional authority,” Republican Sen. Susan Collins, who signed onto Grassley’s bill, told reporters Wednesday. (Trump has vowed to veto this bill if it were to pass.)
Sen. Mike Crapo, who hasn’t signed onto either, acknowledged that the arguments won’t fall along clean political lines — particularly with a law firm like NCLA leading the charge.
“The attacks are coming from all sides,” Crapo told NOTUS. “I’m just waiting to see what the Supreme Court says. They’re gonna look at it and decide.”
That’s been a common refrain among Senate Republicans, who have for months shrugged their shoulders about Trump overstepping the constitutional separation of powers and pointed to the courts to duke it out.
As to whether he thought emergency tariffs are within the scope of the law, Sen. John Hoeven gave NOTUS a simple, “Yes,” saying that the legal challenges are just part of the longstanding debate around executive authority.
“A back and forth between the executive that executes the laws and the Congress who makes the laws, that’s an ongoing process,” Hoeven said.
Sen. James Lankford declined to directly weigh in on whether presidential tariffs were within the scope of IEEPA, but told NOTUS, “I’ll say it’s a novel use of this. It’s not been done before, and every time there’s a new use of a law like that, courts immediately jump in to be able to engage on that.”
He told reporters he hadn’t considered signing onto Grassley’s bill yet. As to whether Congress should act to clarify the law, he was also happy to leave it to the courts — particularly with Trump’s looming veto threat.
“Anytime you’re gonna make new law, that involves the House, the White House and the Senate,” Lankford said. “All three bodies have got to have agreement to be able to move, or you don’t make law — you just make a press conference.”
This story has been updated with a comment from a spokesperson from Stand Together.
—
Claire Heddles is a NOTUS reporter and an Allbritton Journalism Institute fellow.