Resist Schadenfreude to Make Common Cause with the Federalist Society

Here's a recent social media post from President Trump:

As the foregoing rant makes clear, the occasion for Trump's turn against Leonard Leo, some of the judges Trump appointed in his first term, and the Federalist Society was the fact that some of those people believe that the International Emergency Economic Powers Act (IEEPA) does not grant the president the authority to impose the sweeping tariffs Trump imposed. Given the Federal Circuit's stay of the ruling by the Court of International Trade, it is possible that Trump will eventually win this particular battle, although his social media post contains numerous falsehoods. Trump's tariffs were never going to bring in trillions of dollars, much less was any money from tariffs going to come "from other countries." And, of course, Trump's view of presidential powers reflects no familiarity with the Constitution. Even if one thinks that the IEEPA does grant Trump the tariff power he thinks it does, that would be a delegation from Congress, to which Article I assigns the power to tax, not, as Trump seems to think, an inherent presidential power.

But my main point today is not that I disagree with Trump about tariffs or the meaning of the IEEPA, although of course I do disagree. I made clear my view that the IEEPA does not authorize Trump's tariffs in early February. In the rest of this essay, I want to say a few words about the entirely predictable fact that Trump has turned against Leo and those of Trump's judicial appointees with the audacity to disagree with him about anything.

I'll begin by parsing Trump's Truth Social post. It is vintage Trump. There is the petty name-calling: Trump calls Leo a "sleazebag" and "a bad person." There is the standard projection: Trump accuses Leo of ambition and self-interest at the expense of the public good. And there is the absurd hyperbole of describing Leo and the lawyers and judges who take the standard mainstream, even politically conservative, position that free trade is beneficial, as "Radical Left."

Or perhaps I've misread that last bit. Maybe the lawyers and judges who think Trump's tariffs overstepped his authority as president are, in Trump's mind, "radical left" because they do not believe that the president has unfettered power to impose tariffs and do whatever else he claims is in the national interest (such as rendition people to torturous captivity overseas and treat congressional appropriations as a cudgel to be repurposed to pursue personal vendettas). If so, there is a sense in which Trump is not entirely wrong.

Robust visions of presidential power--including but not limited to the power to fire officials with statutory protection against such firing--have, in the last few decades, been championed by conservative scholars, lawyers, and jurists. The right, not the left, gave us the unitary executive theory and a vision of the presidency that could have come from authoritarian/Nazi theorist Carl Schmitt. People who believe there is a limit to presidential power are to the left of the neo-Schmittians. That doesn't make them/us "radical left," but it could explain why Trump and his enablers might be a bit surprised by the fact that even many conservative lawyers and judges think he is abusing his power. And thus he lashes out at conservatives.

Meanwhile, Stephen Miller told CNN that the administration is "not going to be using the Federalist Society to make judicial nominations at all going forward." That's technically misleading because, as an official matter, the first Trump administration didn't use the Federalist Society to make judicial nominations either. Leo took a leave of absence from his Fed Soc leadership position to play a key role in Trump's selection of nominees, but Fed Soc itself never had any official role in the process. That said, Trump and Miller are not wrong in treating Fed Soc as previously having a very large de facto influence over judicial selection. 

In these circumstances, it is tempting to gloat--to say something like "I told you so" to Leo and the other conservatives who, since 2016, have tolerated, exploited, and even promoted Trump and Trumpism. They apparently believed they could benefit from Trump the face-eating leopard (for example by getting the SCOTUS they wanted to overrule precedents involving abortion and affirmative action) without eventually having their own faces eaten.

We should nonetheless resist the temptation to say that such conservatives got what they deserved. Rather, we should offer to make common cause with Federalist Society members, leaders, and fellow travelers who, while embracing a very different vision of law and justice than we liberals and progressives embrace, nonetheless believe in law.

Consider this essay a call for such an alliance, beginning with Trump's latest target: the Federalist Society in general and Leonard Leo in particular.

I have met Leo on a few occasions and have only ever had cordial interactions with him. He is a loyal Cornell Law School alum who has been generous to the school over the years, although, as I explained last year in a Verdict column and accompanying essay here on the blog, I was among the majority of our faculty who urged the Dean not to accept a very large gift from an organization Leo controls because we understood it to come with too many de facto strings attached. And, needless to say, I have numerous disagreements about law and policy with Leo and with other conservatives.

But important as those caveats and disagreements are, we can and should place them on hold while joining forces to save our democracy, because unless we do so, nothing else matters. So how about it? Now that the face-eating-leopard-in-chief is trying to eat your faces, my Fed Soc friends, let's stand together to try to stop him.