The DOJ missive is not a legal argument. It is pure political intimidation.

I ’ve tried to take a break from news coverage over the past few weeks, so I was fortunate to miss (until reading Jason Willick’s always valuable Washington Post column) one of the more embarrassing submissions the Department of Justice has ever made to a federal court. But there it is: an August 11 letter to the Court of Appeals for the Federal Circuit. That is the tribunal now considering the Trump administration’s appeal of a compelling decision by the U.S. Court of International Trade (CIT) that invalidated one of the largest ever tax increases on the American people, President Trump’s unilaterally decreed tariffs.

The letter was signed off on by Trump DOJ Civil Division Chief Brett Shumate, who is handling the case, in conjunction with Solicitor General D. John Sauer. Both are good lawyers, making their letter all the more indecorous. (Sadly, this is not Sauer’s first episode of masquerading Trump political blather as legal argument — see my discussion of his amicus brief in the TikTok case, which the Supreme Court unsurprisingly ignored . . . after which the president ignored the Court’s ruling and the governing statute.)

The four-paragraph letter, which cites no legal authority, was submitted after oral argument in the case went badly for the administration. That was to be expected by anyone familiar with the CIT’s explanation of why the International Emergency Economic Powers Act (IEEPA), on which Trump relies, does not vest the president with authority to impose tariffs.

The DOJ missive is not a legal argument. It is pure political intimidation: a strident claim that, should the appeals court follow the CIT’s lead and call the president on his lawlessness, it would somehow imperil national security, harpoon American foreign policy, and plunge the United States into “a 1929-style result” — i.e., we are to believe the court would be responsible for an economic calamity of a dimension unknown since the Great Depression.

Now, it’s not unusual for litigants to engage in this kind of mau-mauing. A judge typically hears it from a desperate defendant who, having no real legal defense, conjures up a parade of horribles that will supposedly ensue if the judge, you know, follows the law. What’s unusual here is the Justice Department’s role. Customarily, judges depend on the DOJ, with its reputation for accurately framing both the relevant legal principles and the court’s duty to apply them, to refute such claims. In this instance, it is the DOJ urging that the court abandon the law and endorse the claptrap.

Here’s a taste of the government’s, er, legal theory:

There is no substitute for the tariffs and deals that President Trump has made. One year ago, the United States was a dead country, and now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable, and respected country again. If the United States were forced to pay back the trillions of dollars committed to us, America could go from strength to failure the moment such an incorrect decision took effect.

Now, factually speaking, this is utterly wrong. The United States has never been a “dead country,” whatever that means. Tariffs are taxes paid by American importers, not fees paid by foreign countries. Nations that have so-called trade surpluses with the United States provide us the benefit of investment surpluses, plowing dollars into our economy, thus promoting American business investment and American employment, while keeping American consumer prices low. And what makes our country strong, financially viable, and respected is a rule-of-law culture in which the government must adhere to the laws and, if it fails to do so, those harmed can get redress in the courts, while Congress has various means to counter executive excess.

But the main point here is the Trump Justice Department does not even pretend to be positing legal contentions. It is making a barely veiled political claim that if the appeals court follows the law, it will be the author of catastrophe — a claim as bereft of factual grounding as it is of legal support.

To the extent the Justice Department offers something that at least approaches the ballpark of an actual legal argument, it is the implication that a ruling against the tariffs would plunge the judiciary into the realm of foreign relations; that’s the turf of the political branches, in which the president has principal authority and from which courts are excluded. The idea is that the president has made trade agreements with foreign powers based on his (untenable) assumption that the tariffs are legally viable; consequently, if the appeals court rules (as the CIT already did) that the tariffs are illegal, the trade agreements will be broken and the Treasury will be denied what the president describes as “trillions of dollars” in revenue. (Forbes estimates that Trump’s levies have actually generated about $96 billion since taking effect in April; Treasury Secretary Scott Bessent forecasts that the tariffs could raise about $300 billion annually.)

DOJ’s theory is absurd — which is why the solicitor general, who habitually wouldn’t say “May it please the court” unless he had a Supreme Court precedent in support of court pleasing, doesn’t even try to back it up with a case or a statute.

Obviously, the courts are not authorized to participate in, much less direct, American diplomacy. Remember, for example, when various red-state attorneys general filed a lawsuit in an attempt to induce the Biden administration to (among other things) reinstate Trump’s “Remain in Mexico” immigration-enforcement policy. In rebuffing them, the Supreme Court explained that it had no authority to compel the executive branch to engage in negotiations with a foreign power, much less to direct it and the foreign power jointly to take a particular action. (See Biden v. Texas (2022).)

That, however, is not this case. A president has no legal authority to premise foreign policy positions on either violations of U.S. law or decrees that the president has no authority to make. Hence, when President George W. Bush invoked his foreign affairs powers to try to force Texas, in violation of its laws, to honor an International Court of Justice (ICJ) ruling — under circumstances in which no treaty or congressional statute made such rulings enforceable — the Supreme Court sided with Texas. (See Medellin v. Texas (2008).)

Note the distinction: In Medellin, the Court did not intrude on the president’s conduct of foreign relations. It simply ruled that the president had improperly issued a directive to the states that had no basis in the Constitution or statute.

There was a lawful way for President Bush to attempt to get the outcome he wanted. He could have tried to persuade Congress to enact a law making ICJ decisions binding. Of course, that would have been deeply unpopular, and Congress would have balked — just as today’s Congress would be very unlikely to enact the tax hike that is the Trump tariffs. So the president tried to go it alone.

But Bush had no such authority. That he tried to do it anyway put him, not the Supreme Court, in the wrong. The president was the actor, the justices merely the messenger. The job of judges is to decide the narrow questions in front of them, based on the law applicable to the case. It’s a small world and, unavoidably, countless judicial rulings may carry collateral foreign-relations ramifications. Judges have no business trying to predict those ramifications and base rulings on that fool’s errand.

If a president negotiates foreign agreements based on dubious or outright incorrect legal assumptions, that traduces the president’s constitutional duty to execute the laws faithfully. When that happens, then as everyone, including presidents, has known for over two centuries, “It is emphatically the duty of the Judicial Department to say what the law is.” (See Marbury v. Madison (1803).)

Here, the law is that the president lacks the authority he has purported to invoke. Saliently, the DOJ letter concedes that the president has available to him “other tariff authorities” — the lawyers mean statutes, unlike the IEEPA, by which Congress has actually authorized the president to impose tariffs — but they are “short-term [and] not nearly as powerful.” Well, yeah: Since tariffs operate as taxes on the American people, Congress — the branch to which the Constitution assigns the power to tax — delegates presidents the power to impose them only after jumping through lots of hoops, and requires that these levies be limited in duration and amount. If I may translate: The president is fashioning his own tariff law because he feels too inhibited by Congress’s tariff laws. To state such a position clearly would be to crash and burn in federal court; hence, the doomsday rhetoric.

Shumate and Sauer know this. You know who is similarly well aware? Congressional Republicans. And you can bet the ranch that you’d be hearing from them if Obama or Biden had lawlessly taxed Americans by distorting a federal statute. With Trump in office, however, Republicans have gone mum — except when repeatedly using their congressional majorities to block votes on the Trump tariffs.

Courage!