Supreme Court Tariffs Case: Strategic Lawyer Choice Could Sway Outcome, Columnist Reveals

A critical Supreme Court case concerning presidential power to impose tariffs could be significantly influenced by the choice of legal counsel presenting oral arguments, according to a recent analysis by Washington Post columnist Jason Willick. The revelation, highlighted by law professor Derek T. Muller, suggests a strategic misstep by challengers to former President Donald Trump's executive authority. Muller reacted on social media, stating, > "Wow, big scoop from @jawillick: https://t.co/DndTzuRbW."

The case, slated for oral arguments in less than two weeks, examines whether the president possesses unlimited power to raise revenue through tariffs without congressional approval. Lower courts have delivered mixed rulings, with some Republican-appointed appellate judges siding with the former president. The Supreme Court's conservative majority has historically been wary of broad assertions of executive power by Democratic administrations, but the national security dimension cited by the Trump administration in this instance adds complexity.

Challengers to the tariff power, including the Liberty Justice Center, are reportedly considering Neal K. Katyal, a former acting solicitor general under President Barack Obama, to argue their case. Willick's column, however, suggests that selecting Katyal, known for his anti-Trump commentary, could be a strategic error. The columnist argues that a more conservative and originalist advocate, such as Michael W. McConnell, would be better positioned to persuade the court's majority.

McConnell, a former appellate judge appointed by President George W. Bush, is recognized for his expertise in executive power and its limitations. His academic background and perceived political neutrality could resonate more effectively with the conservative justices, potentially swaying the outcome. The Supreme Court has decreed that only one advocate will represent the private parties, forcing a crucial decision on legal strategy.

The case also involves Democratic state attorneys general challenging Trump's tariff authority, meaning a choice of Katyal could lead to two Democratic-aligned lawyers arguing against the administration. This scenario, Willick posits, risks polarizing the case and playing into a narrative of political opposition rather than a principled legal challenge. The strategic implications of this decision are paramount for the future of executive power and trade policy.