Blog Posts Help Spur Trump Tariffs Challenge at Supreme Court

A blog post attacking the legal basis behind President Donald Trump’s tariffs helped set in motion a lawsuit central to the dispute over presidential power that will be considered by the US Supreme Court.

The justices on Wednesday will hear arguments stemming from a trio of cases challenging the bulk of Trump’s tariffs. One has its roots in a post on the legal blog Volokh Conspiracy that called for fighting Trump under a pair of judicial doctrines, including a standard that says a president must have clear authorization from Congress in matters of economic significance.

That post, published by George Mason University law professor Ilya Somin, got the attention of Jeffrey Schwab, a lawyer at a libertarian-leaning nonprofit known for its work challenging mandatory union fees for government employees and Covid-19 vaccine mandates.

Schwab contacted Somin, and within months they were pushing to bring a lawsuit challenging the “Liberation Day” tariffs Trump issued in April. A subsequent blog post from Somin “looking for plaintiffs” connected them with multiple small business owners now anchoring a case that could implicate trillions of dollars in international commerce.

“Probably the first time a blog post got us to the Supreme Court,” said Schwab, who runs litigation at the Austin-based Liberty Justice Center that filed the suit with Somin as co-counsel.

The quick succession of events highlights the rapid push some businesses and lawyers mounted to oppose one of Trump’s signature policies, as well as the influence online legal commentary can have in seeding ideas for litigation.

“Blogging in general is making this possible,” argued Eugene Volokh, a UCLA School of Law professor who in 2002 founded the eponymous blog now housed at Reason magazine.

“It used to be back in the early 1990s that anything written about a case would either be in law journals or in the briefs of the parties,” Volokh added. “Now all sorts of law professors, some at our blog, comment on current issues and help influence the debate. Timely commentary is more important now than ever.”

Legal scholar Ilya Somin’s call for challenging Trump’s tariffs helped kickstart a case being considered by the Supreme Court.

‘Crowdsourcing’ Arguments

Somin, who wasn’t available for an interview, is among a mix of legal scholars that range from center-right to “hardcore libertarian” who regularly contribute to the Volokh Conspiracy and enjoy self-publishing privileges, Volokh said.

The site averages about 15,000 readers on weekdays, Volokh noted. Justice Elena Kagan has previously said she’s among them.

It’s perhaps most well-known for its influence on the debate surrounding the Affordable Care Act’s individual mandate. The argument that if Congress could make you buy health insurance, it could force you to eat broccoli first appeared on the Volokh Conspiracy.

Justice Antonin Scalia embraced a version of that thread during arguments and the reference appeared multiple times in a divided opinion upholding the mandate in 2012.

The episode fit into a phenomenon law professors Allison Orr Larsen and Jeffrey L. Fisher described in a 2019 paper as “crowdsourcing” Supreme Court arguments.

“We can’t prove that any one argument on any one blog influenced the justices,” said Larsen, who teaches at William & Mary Law School. “But we have indirect evidence that it’s doing something.”

‘Saw a Post’

But Somin’s role in the tariffs challenge is different from the Obamacare dispute in a fundamental respect: he became directly involved in the Trump case.

While he continues to offer analysis—one June post compared Trump’s tariffs to King Charles I’s taxes to fund naval ships without Parliament’s authorization—Somin’s also used the blog to reach businesses that say they’re threatened by rising tariff rates.

“I saw a post on the internet and it said, ‘Hey, here’s this blog for lawyers, and they’re looking for plaintiffs,’” said David Levi, the owner of a firm that sells electronic kits and imports parts from nations including China, Mexico, and Thailand. “I thought, hey, it would be great to represent small businesses.”

Levi, one of five business owners who joined the suit, said he wasn’t familiar with the Volokh Conspiracy. “I just signed up,” he said.

‘Sparked The Idea’

The Liberty Justice Center, which has in the past gotten financial backing from Trump donors like Richard Uihlein, is representing the small businesses pro bono.

It’s among a raft of groups and lawyers typically aligned with the conservative legal movement that argue Trump disregarded the plain text of a 1977 emergency law, which includes no mention of tariffs, to unilaterally issue them.

“There are few concerns that run together for this ecosystem,” said Andrew Morris, senior counsel at the New Civil Liberties Alliance, a Charles Koch-backed group that brought a separate lawsuit against Trump’s tariffs. “Executive overreach has been a concern for some years. And here, paying attention to what the statute says and limiting executive overreach go together.”

In briefs before the Supreme Court, small businesses have similarly argued that this case is “no different” from ones in which the Supreme Court blocked Biden-era policies due to a lack of clear congressional authority.

Notwithstanding Somin’s blogging, Trump’s tariff scheme appeared to be on a collision course with the Supreme Court.

Rick Woldenberg, who runs two educational toy businesses near Chicago, hired Akin Gump to pursue a separate case that earned victories in two lower courts. A group of Democratic-led states also brought a case and will share time with the private businesses during Wednesday’s arguments.

Still, Schwab said Somin’s initial post a couple weeks into the new Trump administration proved decisive in getting litigation started.

“It sort of sparked the idea,” he said. “And then two, a lot of people saw it when Ilya posted and said we were looking for plaintiffs.”