Observing ICE Is Legal. Killing Observers is Not.

The violence of the Trump Administration’s extreme immigration enforcement tactics is costing precious lives and corroding core constitutional rights. These rights have long existed only in theory for communities of color. As but one example, in 2010, a Customs and Border Protection (CBP) agent shot and killed a 15-year-old Mexican child, Sergio Adrián Hernández Güereca, while the boy was in Mexico. The Supreme Court refused to provide Hernández’s parents with the barest of legal remedies.

The Trump Administration’s killings in Minnesota underscore what minoritized communities have long experienced—that without widespread societal vigilance rights can become ephemeral overnight. The brutal practices employed by Immigration and Customs Enforcement (ICE) and CBP have trampled fundamental freedoms that are the backbone of our fragile democracy and threaten its future. The number of people killed, families terrorized, and rights broken is heartbreaking. The constitutional violations include our First Amendment rights to free expression, our Fourth Amendment rights to be free from unreasonable use of force, our rights to be free from discrimination under the Equal Protection Clause, and our Second Amendment right to possess arms. In isolation, each violation is troubling enough. Together, they speak to a complete disregard of individual liberties and constitutional norms.

As federal courts have routinely recognized, individuals possess a First Amendment right to observe and record law enforcement officers in public space performing their public functions. Such recording serves multiple First Amendment interests. First, recording is protected information gathering on government operations, enabling viewers to make more informed decisions about policies under our democratic system. Second, it can facilitate future speech by the recorder including subsequent dissemination and broadcast of the recording to others. Third, it enriches the marketplace of ideas, providing diverse perspectives (often in contrast to the distinct physical perspectives provided by law enforcement surveillance recordings and misleading public statements made by government agencies about their actions). Fourth, it acts as a direct, in the moment statement of resistance against the recorded activity, helping to ensure government accountability. Fifth, recording can help reclaim the public square for the people—public space that has historically been the cornerstone of First Amendment dialogue and that has been made perilous by law enforcement actions, particularly for marginalized communities.

In response to the First Amendment right to record, law enforcement agencies, including ICE, sometimes contend that they can stop the person recording if they are interfering with law enforcement activity. While it is true that if the person recording begins to physically interfere with an arrest, then arguably law enforcement could stop the recording and briefly detain the individual, it would be a very rare situation where the act of recording itself would sufficiently interfere to justify stopping the recording or arresting the person for interference or purported “obstruction.” Put differently, accountability alone is not interference or obstruction.

And even if the recording does begin to impede law enforcement operations, under no circumstances would such interference justify the degree of force being brutally imposed by federal agencies like ICE and CBP. Consistent with the rich tradition of peaceful civil disobedience by minoritized groups, whether they be racial justice advocates, HIV activists, feminist activists, or others, breaking the law in the name of signaling the law’s injustice does not give officers open license for brutality.

The Fourth Amendment prohibits unreasonable use of force by law enforcement agencies. Under well-established Supreme Court precedent, determining whether the use of force is reasonable or not involves balancing the scope of the government intrusion versus the governmental interests alleged to justify the force. That is, the force must be proportional. This is not a mechanical test and facts must, according to the Court, be “slosh[ed]” through. Factors include the extent of law enforcement force, whether the individual posed a threat to the public or officers (both the magnitude and likelihood of that threat), the severity of any underlying crime, whether the individual is actively resisting or fleeing, and whether law enforcement gives a warning first. And the Court has made clear that “notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon.” Continuing, the Supreme Court has explained that allowing officers to use deadly force anytime they had reason to arrest a person, would in essence turn an officer into judge, jury, and executioner: “The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. . . . The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion.”

As applied in practice, this Fourth Amendment standard (supplemented by qualified immunity doctrine), is a relatively law enforcement-friendly standard. Nonetheless, even under this impoverished Fourth Amendment doctrine, as protected First Amendment recordings of federal immigration enforcement activities have laid bare, ICE and CBP have engaged in unconstitutional use of force, executing protestors Alex Pretti and Renée Good who posed minimal to modest risk to law enforcement. If for some reason these killings were permissible under the Fourth Amendment, that says more about the caliber of the law than it does the humaneness of the actions.

In both cases, the force used by federal agents was the maximum—multiple gunshots that tragically killed each protestor. And the purported government interests justifying the shootings are minimal. Each victim was engaged in activity protected by the First Amendment, neither was a fleeing suspect of a violent crime, and even if their activities interfered with ICE or CBP operations, that interference did not justify deadly force. As to Pretti, some have suggested that his concealed possession of a firearm itself justified the force—but if the Second Amendment and Minnesota law permit the possession of such a weapon, how can its mere presence justify Pretti’s execution? It cannot. And as to Good, to the extent her vehicle posed danger to an officer, the officer’s actions contributing to any danger ought not to be disregarded, and the totality of the circumstances beyond the purported “moment of threat” must be evaluated. If she committed a crime, ICE’s ability to identify and potentially detain Good subsequently also suggests that the force was unreasonable.

Finally, ICE and CBP have surveilled, profiled, and occupied many immigrant communities, using children as pawns. While in practice racial profiling by law enforcement and the imposition of racial guilt is prolific, the Supreme Court held over fifty-years ago that an individual’s apparent race and/or ancestry are alone insufficient bases to doubt someone’s lawful presence in the United States. To conclude otherwise would undermine both the Fourth Amendment’s requirement for individual suspicion and the Equal Protection’s protections against discrimination. Under our constitutional framework, immigrants in this country—including undocumented ones—have constitutional rights to be free from race discrimination and are entitled to due process. All persons ought to be treated as such—their lives cherished, not demonized and destroyed.

ICE’s and CBP’s tactics run afoul of all these protections and basic human dignity. First and foremost, their actions endanger the many immigrants who contribute so much to our country. But they also imperil the constitutional safeguards that are designed to protect American democracy and the lives of everyone.

A Modest Proposal for Ending International Law Courses

While I am only a law school student, I am not the only one asking: is international law dead?

Several opinion pieces have been published on the question. An example from my research is a panel event from October 2025 titled "The Death of International Law?" hosted by Georgetown University in Qatar. Ironically, the YouTube recording of University College London Professor Ralph Wilde’s lecture from the event begins with a title slide which appears to have interpreted the question as a statement: “THE DEATH OF INTERNATIONAL LAW”.

Disagreement over international legal standards is nothing new. But under the current administration, international law has been subordinated to national interest. There are numerous examples, from threats to annex Greenland to a proclamation that America “will run” Venezuela. It is no coincidence that the degradation of international law corresponds with a similar escalation of violence and unlawful actions nationally, such as the shootings of Renee Good and Akex Pretti and the repeated refusal of Department of Justice officials to recognize the illegal appointment of Lindsey Halligan as an acting United States Attorney.

Why? Because the philosophical pillars of domestic law also function as the same pillars of international law. Law schools must treat international law as essential and inseparable, instead of optional and peripheral, to its graduates’ education. Only then might we restore the credibility of international and national law, not just in theory, but in practice.

International law has been taught since the founding of the country. By 1907, however, only ten schools surveyed offered it as a course, and only as an elective. The 20th century saw an expansion in private law due to numerous factors, including the Industrial Revolution. But by the end of the century, industrialization and globalization necessitated experts in legal regimes between countries.

Consider the typical American legal education since then:

In Contracts, we learn economies thrive only because of enforceable promises. Parties to an agreement cannot rely on each other's good faith but on courts to uphold their bargains in a predictable framework.

In Torts, we learn how wrongs are remedied under normative expectations. Social order is manifested by imposing duties of care in which people are obligated to not cause harm to another.

In Criminal Law, we analyze the mens rea behind actions in order to decide if certain conduct is blameworthy and therefore deserving of punishment.

In Constitutional Law, we learn that state action depends on accountability and constraints. Laws must apply equally, regardless of status, or else people do not have a reason to uphold the social contract.

Now consider how international law was, and is, taught: a separate silo in the upper years of law school, often only for students who already have a niche interest. It is outside of the bounds of the country, and therefore, outside of the bounds of curriculum. For most students, I suspect, doctrinal classes may as well assume America is afloat in the void of space.

No cases to study for intercontinental trade disputes. No duty of care for those overseas. No crimes across borders. No separation of powers in supranational unions. The exceptions are usually only incidental.

This educational gap is not merely academic. Looking at American Association of Law Schools and American Bar Association survey data, about one-in-four schools offered an international law course between 1912 and 1938. The failure of international peacekeeping efforts in the ensuing Second World War would create a generation of lawyers committed to a rules-based international order — a world grounded in law, not power. This is evidenced by the number of schools offering an international law course rising to one-in-two by 1953 and virtually every law school by 1996.

While the number of schools offering international law classes increased, the number of students learning international law has stagnated. Writing in 1997, John A. Barrett Jr. noted “since the 1960s, the percentage of students taking these courses has remained relatively constant.” It’s no surprise because international law is often siloed and elective. One survey found only 4% of US law schools required an international law course in 2015 compared to almost a quarter in Canada and 89% in Mexico.

This contrast cannot be chalked up to different legal histories. The post-war international consensus galvanized around ideas of legitimacy and social contract, in line with the philosophy of Jean-Jacques Rousseau. His ideas, as well as other Enlightenment thinkers, influenced America’s Declaration of Independence and Constitution which created the domestic rule of law we have today.

To continue segregating international law into separate courses and departments falsely lures future generations of lawyers into believing it is also isolated in practice. It creates practitioners who believe our international economy can sustain growth while sabotaging agreements for unilateral gain. It incentivizes environmental devastation which harms those downstream. It allows for the proliferation and normalization of interstate violence. It reduces our own ability to defend ourselves by alienating allies.

And that is where we find ourselves currently.

President Trump, in an interview with The New York Times, said “I don’t need international law”. In a sense, he is right: we don’t need separate legal principles to justify an international rule of law. The same legal principles which provide us with justice at home can provide us with justice abroad. Likewise, the abdication of those principles between nations inevitably will sabotage faith in those principles domestically. We can only hope today’s lawyers and judges will act with this understanding, but we can, and should, act to ensure tomorrow’s lawyers and judges are wiser.

President’s Contrived Emergencies Seek to Erase Legal Limits on War Powers

Over the past three months, the Trump administration has effectively gone to war with an amorphous foe. Although the administration describes this as “non-international [i.e. not between nations] armed conflict” with vaguely defined drug cartels, it is in fact a one-sided affair in which U.S. missiles have struck and killed more than 80 people on boats in the Caribbean and eastern Pacific. Perhaps most notoriously, one of these strikes killed two men who survived an initial attack and were clinging to wreckage; some experts are concerned that all of the strikes were simply murder.

Despite the broad consensus among international law experts that the U.S. military campaign violates international law, President Donald Trump has suggested he could escalate the fight, including perhaps by an invasion of Venezuela (the administration has claimed, without evidence, the boats it is attacking are bringing drugs from Venezuela to the United States). The Trump administration’s military actions also violate U.S. law. This is not a particularly complicated question but requires an understanding of the relevant context and background.

Sometimes, questions of constitutional interpretation are unclear, difficult to resolve. To paraphrase Justice Robert H. Jackson’s observation from the Youngstown Sheet steel seizure case, sorting out precisely what the framers had in mind when it comes to some of the more ambiguous constitutional provisions can be daunting. Originalism does not always offer clear answers.

But, as Jackson also recognized, sometimes the record is clear. For example, there is no doubt that the framers rejected the notion of unlimited prerogative—the power to act against the law— associated with 17th century British monarchs (Jackson incorrectly claimed King George III had such power; in fact, the monarchy’s power had been reined in after the Glorious Revolution of 1688-89).

Whatever else we may not know about the framers’ intentions, we know this: they did not create the U.S. presidency in the image of the Stuart monarchy. As Alexander Hamilton explained, the president would not be a king. While the person of the British monarch would be “sacred and inviolable,” unanswerable to any punishment “without involving the crisis of a national revolution,” the president would be subject to impeachment and removal from office, as well as “prosecution and punishment in the ordinary course of law” (the Supreme Court smoked this historical layup in Trump v. United States).

In the same vein, the historical record is clear when it comes to war power. As political scientist Louis Fisher recounts, the framers broke with the British model that assigned royal prerogative to the monarch when it came to foreign affairs, including the power to go to war. As Fisher explains, the framers were in agreement that Congress, not the president, would initiate war. The record is filled with evidence to support this point, whether it is Hamilton asserting that “the Legislature alone can declare war, can actually transfer the nation from a state of Peace to a state of War,” James Madison pointing out that “those who are to conduct a war [i.e. the president] cannot, in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded,” or George Washington acknowledging that “no offensive [military] expedition of importance can be undertaken until after [Congress] shall have … authorized such a measure.”  None of the framers claimed that the president could unilaterally take the nation to war. As Washington’s words suggest, and as Madison and Elbridge Gerry said more precisely at the constitutional convention, the president’s unilateral war power would extend only to “the power to repel sudden attacks,” a limited implied emergency power.

Presidents before Truman understood this constitutional reality. Even Abraham Lincoln, faced with a far-reaching rebellion, realized he needed congressional approval in order to wage the Civil War. After initially taking emergency unilateral action with Congress out of session at the start of the war, Lincoln called Congress into special session in July 1861, provided a detailed explanation of and justification for the actions he had taken on his own, and deferred to “the better judgment of Congress” as to what would happen next.

Unlike Lincoln, Trump faces no emergency that demands immediate unilateral action. Congress is available to weigh in and there is time to seek legislative authorization, but for the Trump administration, Congress is largely irrelevant. Trump has not made his case to Congress or to the American people as to why this military campaign is necessary.

Of course, Trump is not the first president to unconstitutionally order the offensive use of military force without congressional approval when no emergency demanded immediate action. Presidents of both parties have often followed Truman’s example in writing Congress out of the equation. However, as political scientist Jim Pfiffner observes, “repeated violation of the provisions of the Constitution do not make them constitutional.”  As I have pointed out, Presidents Barack Obama and Joe Biden also violated the Constitution by unilaterally ordering military action outside the emergency self-defense context.

What’s different with Trump is that, unlike any recent president other than Nixon, he is an authoritarian more in the mold of Viktor Orban than Ronald Reagan. As historian Robert Kagan has worried, Trump could use a foreign war as a pretext to consolidate control domestically. It is important not to catastrophize or suggest anything is inevitable. However, it is also essential to describe the reality we are experiencing. Trump is using textbook authoritarian tactics in seeking to erase legal limits on power, including by waging what he describes as a “war from within” against his perceived domestic enemies. As I explain in a forthcoming book, Trump has used contrived emergencies as a pretext to consolidate power, including by deploying troops on U.S. streets, justifying many of the administration’s tariffs, and invoking the Alien Enemies Act for the first time since World War II.

The ongoing presidential war against claimed drug runners is no different. Trump suggests that an emergency justified defensive action against boats allegedly bringing drugs to the U.S., but there is no evidence of any genuine emergency, and certainly no reason why Trump could not have sought congressional authorization sometime over the past three months. In a functioning constitutional system, Congress would, in Madison’s words, act to “resist encroachments” by the president on its war power. In our failed constitutional system, Congress passively stands by as a president with authoritarian goals claims prerogative. This is not the system the framers designed; indeed, Trump’s aspirations bring to mind the kind of monarchical power the framers unequivocally rejected. Of course, Madison did not envision Congress as the only check; he described “a dependence on the people” as “the primary control on the government”. Polling suggests that war with Venezuela is unpopular and Trump’s overall unpopularity “may hinder his [broader] efforts to entrench authoritarian rule.” Trump is gambling that he can do as he likes when it comes to war power, but even at a time when congressional checks on presidential power have eroded, there is no guarantee as to how this plays out.

 

Is Federal Criminal Solicitation Unconstitutionally Overbroad?

“He who kills the president to save the country has broken no laws.” “If we’re planning murders, I’d like to suggest an orange one.” “Would someone just take care of it? Someone with the right skills and tools.” “Take the shot. We’ll deal with the fallout.”

Is it a crime – specifically, solicitation of the assassination of President Trump – to post messages like these (and dozens more) on microblogging sites like X and BlueSky? A jury in the Eastern District of Virginia just answered “no” by finding the person who posted those messages not guilty of soliciting a crime of violence in violation of federal criminal law 18 U.S.C. § 373. I’m the Federal Public Defender for the Eastern District of Virginia, and I represented him.

The case raised the following question: does the mere encouragement of another to commit a crime, without any additional inducement but with the requisite intent, constitute criminal solicitation?

If you skim the 2023 U.S. Supreme Court case United States v. Hansen, you might think the answer is yes. Hansen involved an offense that makes it unlawful to encourage or induce an alien to unlawfully come to, enter, or reside in the United States, and the Court limited the scope of the offense to criminal solicitation and aiding and abetting. Hansen defines criminal solicitation as “the intentional encouragement of an unlawful act.”

But it’s also clear from the opinion that the Court defined “encouragement” in a “specialized, criminal-law sense” that is far narrower than its ordinary meaning. As the dissenters point out, an offense limited to criminal solicitation should exclude a grandmother who merely encourages her noncitizen grandchild to move illegally to the United States. To avoid holding that the statute was unconstitutionally overbroad, the Court held that a statute that prohibits “encouragement” of unlawful immigration requires proof of more than mere “encouragement,” as that term is ordinarily understood, of unlawful immigration.

Nonetheless, criminal law treatises imply a broader definition of criminal solicitation offenses. Wayne Lafave’s treatise Substantive Criminal Law, for example, explains that “the essence of the crime of solicitation is ‘asking a person to commit a crime,’ [and] it ‘requires neither a direction to proceed nor the fulfillment of any conditions,’ nor, for that matter, a quid pro quo.” According to that treatise, advising, counseling, encouraging, entreating, importuning, and urging are all equivalent to requesting that someone else commit a crime. Section 5.02 of the Model Penal Code similarly defines criminal solicitation broadly to encompass speech that requests another to commit any offense. Like the federal solicitation statute, which prohibits anyone who “solicits, commands, induces, or otherwise endeavors to persuade” another person to commit a violent crime, the Model Penal Code proscribes “command[ing], encourag[ing], or request[ing].”

But what of the First Amendment? At the time of the founding, it was a crime to “compass” or imagine the death of the King, and saying as much out loud was a form of treason. A representative government, by contrast, is premised on the idea that vehement opposition to the President is not a crime. The principle “that opposition to [the government’s] abuses is not treason,” the Supreme Court has explained, “had made our government tolerant of opposition based on differences of opinion that in some parts of the world would have kept the hangman busy.”

The Supreme Court’s 1969 landmark decision in Brandenburg v. Ohio even bars the government from prohibiting “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” According to Brandenburg, “mere advocacy, unrelated to its tendency to produce forcible action[,]” remains protected speech.

The Court has thus explained that “[t]he mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” Indeed, it has noted that words like, “I encourage you to obtain child pornography,” although certainly advocating that someone commit a crime, remains protected by the First Amendment.

So how do we reconcile the crime of solicitation on the one hand with the First Amendment’s protection for speech that encourages others to violate the law on the other?

According to the federal prosecutors in the Eastern District of Virginia, speech that satisfies the elements of criminal solicitation is categorically excluded from First Amendment protection, which they argued protects only theoretical statements justifying violence in the abstract. Just as certain narrow categories of speech such as obscenity, “true threats,” fighting words, and offers to engage in illegal transactions are categorically excluded from First Amendment protection, the prosecutors argued, so is speech that amounts to a criminal solicitation.

The problem with this argument is that it fails to explain the First Amendment’s protection of what the Court has described as “’mere advocacy’ of illegal acts—a kind of speech falling within the First Amendment’s core[.]” If speech advocating or encouraging others to commit unlawful acts, without more, satisfies the elements of solicitation and can be prohibited, there’s nothing left of Brandenburg’s holding.

U.S. District Judge Anthony Trenga thus instructed the jury that the First Amendment protects “speech that merely, without more, encourages or advocates that others should engage in violence—even violence against political figures or the government—at some indefinite point in the future.” The court then explained that if the jury determined that the defendant’s conduct satisfied the elements of federal solicitation of a crime of violence, 18 U.S.C. § 373, it must then decide whether it constituted “the mere or abstract advocacy of violence or lawlessness at some indefinite time in the future,” and therefore was protected speech, or “was directed and likely to produce imminent lawlessness,” and thus unprotected by the First Amendment.

If the elements of criminal solicitation can be satisfied by “mere advocacy” – meaning pure speech encouraging others to commit a crime without providing any assistance, offers to partner or hire, or otherwise proposing to conspire, as the prosecutors maintained -- this was undoubtedly a correct instruction. It ensured that a conviction could not rest upon speech protected by the First Amendment. But it also means that criminal solicitation in violation of § 373 encompasses a significant amount of protected speech.

There’s an easier path to reconciling criminal solicitation and the First Amendment, which is to construe the elements of solicitation statutes to require more than mere advocacy — like the majority did in Hansen. As a 1997 DOJ report on the publication of bombmaking materials noted, “[i]n the prototypical solicitation case, the ‘persuasion’ is accompanied by some form of inducement, such as a money payment, or a threat. Such a case raises no First Amendment issues[.]” The report goes on, however, to observe that “insofar as Congress also intended § 373 to cover cases of ‘persuasion’ taking the form of mere advocacy or urging of unlawful action – without any threat or inducement – many such cases could be subject to significant First Amendment constraints under the Brandenburg doctrine.”

The legislative history of 18 U.S.C. § 373 reveals that Congress intended the crime of federal solicitation to require proof of a serious offer to conspire to commit a violent felony or engage in an illegal transaction to do so. As Senate Report 98-225, which accompanied the Comprehensive Crime Control Act of which § 373 is a part, explains, “[s]olicitation involves a hiring or partnership arrangement, designed to accomplish a specific action in violation of law, where the communication is an essential link in a direct chain leading to criminal action.” If that’s what the elements of the crime of federal solicitation required – proof of a serious offer to hire or partner with someone to commit a violent crime – then the offense of criminal solicitation would be categorically excluded from First Amendment protection. And no one, like my client, would be prosecuted for speech that falls within the core of the First Amendment’s protections.

On Tariffs and Constitutional Structure

On a Sunday evening in August 1971, Richard Nixon appeared on television to announce what he called a New Economic Policy. Without warning, without congressional debate, without a single vote by any elected representative, the President imposed a 10% tax on virtually all foreign goods entering the United States. Nixon wrapped this unprecedented assertion of executive power in the language of emergency—the Bretton Woods monetary system was collapsing, the gold standard was dying, and decisive action couldn't wait for Congress.

When businesses challenged these surprise tariffs in federal court, the judges ruled that presidential authority to "regulate" imports under emergency powers did not include the power to tax. Congress responded by passing new legislation that explicitly granted presidents emergency tariff authority—but only up to 15%, only for 150 days, and only in genuine balance-of-payments crises.

Half a century later, President Trump has shattered Nixon's precedent and Congress's carefully crafted limits. Claiming authority under the International Emergency Economic Powers Act—a 1977 statute that, like Nixon's law, permits "regulating" imports during emergencies but never mentions taxation—Trump has imposed tariffs up to 57% with no expiration date.

The Supreme Court will hear oral arguments this month on this very issue, an issue that the Framers thought they had answered definitively: Can a president impose taxes on the American people without explicit congressional authorization? The administration's argument reduces to this: because IEEPA lets presidents "regulate" trade during emergencies, and because regulation sometimes can include taxation when Congress explicitly says so, presidents now possess inherent authority to tax by executive decree whenever they declare an emergency.

This interpretation would hand future presidents—Democrat and Republican alike—a power that the British Parliament denied to kings and the Founders denied to presidents. The next president could declare a climate emergency and impose carbon tariffs to fund renewable energy. Another might proclaim an infrastructure crisis and tax imports to finance construction projects. The wisdom of these policies is beside the point. Constitutional structure isn’t a luxury we can afford only when we distrust the president in office—it’s the framework that makes disagreement itself sustainable across time. The constraint that protects your adversary's rights today is the same constraint that will protect yours tomorrow. When we ask whether a president may tax without Congress, we're not asking whether this president's emergency is genuine or that president's aims are worthy. We're asking what kind of republic we mean to be, or capable of keeping. And indeed once "regulate" means "tax," and once any persistent problem qualifies as an emergency, the Constitution's most fundamental structural constraint on executive power evaporates.

The power of the purse returns to exactly where the Revolution said it must never reside: in the hands of one person, declaring necessities, imposing burdens, beyond the reach of the people's representatives.

When Charles I tried to impose ship money levies without Parliament's consent in the 1630s, he triggered a civil war that cost him his throne and his head. When George III attempted taxation without colonial representation in the 1760s, he lost an empire. The Framers knew this history intimately—several had law libraries dominated by English constitutional treatises, and all had lived through a revolution triggered by executive taxation.  The Framers encoded this historical lesson into our constitution. They made the power to tax Congress's first enumerated power, required revenue bills to originate in the House, and gave the President no independent authority to raise revenue.

Now the Court must decide whether those constraints still bind or whether creative statutory interpretation can accomplish what the Constitution – and the history accompanying it – unequivocally forbids.

No Taxation Without Representation: Why the Supreme Court Must Reject Presidential Tariffs

For over four centuries, the power to tax has stood as the most jealously guarded right in the Anglo-American constitutional tradition—not simply because of money, but because of what taxation represents: the power to command the people's property without their ongoing consent.

In the 1620s, Charles I faced a Parliament that refused to grant him adequate revenues. Rather than negotiate, the Stuart monarch turned to creative interpretation—imposing "forced loans" that were taxes in all but name, and imprisoning without trial those who refused to pay. When Parliament protested, Charles dissolved it in 1629 and ruled for eleven years without calling it at all.

To finance his government, Charles revived "ship money"—originally a requirement that coastal towns provide ships for the navy in wartime. But Charles transformed it: extending the levy to inland counties, imposing it during peacetime, and making it annual and indefinite. The courts upheld his authority by a narrow 7-5 vote in R v. Hampden (1637), reasoning that the King alone could determine when an emergency existed and what revenues it required.

Parliament's response came with the Petition of Right (1628)—a constitutional document ranking alongside Magna Carta. Led by Sir Edward Coke, Parliament forced Charles to acknowledge four principles: no taxation without parliamentary consent, no imprisonment without cause, no quartering of soldiers on citizens, and no martial law in peacetime. Charles signed it but never honored it. By 1642, England had descended into civil war. By 1649, Charles I had been tried for treason and beheaded.

The American revolutionaries knew this history intimately. Many colonial leaders had read Coke's Institutes and understood that John Hampden's challenge to ship money had made him "the Father of the People." When Parliament began imposing taxes on the colonies in the 1760s, the colonists reached for the same constitutional vocabulary their English ancestors had used against the Stuarts.

But here's what modern lawyers often miss: the colonists' argument was more sophisticated than simply "no taxation without representation." They drew a careful distinction between Parliament's power to regulate imperial trade and its power to tax for revenue.

The colonists conceded Parliament's authority to regulate commerce. The Navigation Acts, which required certain goods to be shipped on British vessels, were generally accepted. Parliament could shape trade patterns: directing manufacturing to Britain, agriculture to the colonies, controlling trade routes. Such regulations were understood as part of the mercantile system that bound the empire together. The mother country would provide military defense and access to British markets; the colonies would supply raw materials and purchase British manufactures; coordinated trade policies would strengthen the entire empire against its European rivals. These were external duties—regulations affecting commerce at the ports that could be avoided by not importing certain goods.

What the colonists rejected was Parliament's claim to impose internal taxes—levies designed purely to extract revenue. The Stamp Act required colonists to purchase revenue stamps for newspapers, legal documents, playing cards, and countless daily items. Unlike import duties, the Stamp Tax reached into every household and business.

Purposeful revenue-raising could only be accomplished, Americans insisted, by large representative assemblies elected at regular intervals. Parliament – that far-away government - could not tax America for revenue purposes because Parliament was not elected and frequently re-elected by Americans. The Declaration of Independence assailed both British King George III and his British Parliament for "imposing Taxes on us without our Consent"—that is, consent as registered in our own legislatures.

The Statutory Sleight of Hand

Given that America's Congress has broad taxation power and also broad power to regulate various matters, including interstate and international commerce, Congress may indeed combine these powers in its legislation. Thus, Congress may regulate for revenue purposes, and also raise revenue for regulatory purposes.

The issues in this case raise entirely different questions. May the executive, without clear congressional authorization, twist a statute that nowhere uses the magic words "tax" or "revenue" into a gigantic revenue measure? May the executive, in effect, rewrite the entire tax code for an indefinite period in the absence of any clear legislative authorization?

Consider the absurdity of the government's position. IEEPA authorizes regulation of both imports and exports. But the Constitution absolutely prohibits Congress from taxing exports—Article I, Section 9, Clause 5. Southern states insisted on this provision to protect their agricultural exports from federal revenue extraction. It is a textual stretch to say that the word "regulate" means "regulate for revenue purposes" for imports but means the exact opposite for exports. The government would have us believe Congress used the same word in the same sentence to authorize taxation (for imports) and to forbid it (for exports).

The government places great weight on President Nixon's 1971 emergency tariffs. Facing a balance of payments crisis that threatened the Bretton Woods monetary system, Nixon imposed a 10% import surcharge under the Trading with the Enemy Act, which, like IEEPA, authorized the president to "regulate" imports. When challenged, the customs court initially held Nixon lacked such authority. But Congress, even while supporting Nixon's economic goals, was deeply concerned about the assumption of power.

Missing in the government’s brief, however, is what happened next. Congress passed Section 122 of the Trade Act of 1974, explicitly granting presidents emergency tariff authority—but only up to 15% and only for 150 days. If Congress believed that "regulate" in TWEA already encompassed tariff authority, this statute would have been superfluous. Congress was not ratifying an existing power but creating a new, carefully limited one.

Then, Congress repealed TWEA except in cases of declared war and enacted IEEPA to govern peacetime emergencies. The legislative history is utterly silent on tariffs. Why? Because Congress had just finished addressing emergency tariffs in Section 122. It defies belief that Congress, having carefully limited emergency tariffs to 15% for 150 days in one statute, simultaneously granted unlimited tariff authority in another without saying so.

President Trump's tariffs make a mockery of these limits. They range up to 57% on Brazilian goods. They have no end date. They vastly exceed what Congress authorized when it actually addressed emergency tariffs explicitly.

The administration's defenders argue that this Court should defer to presidential judgment in matters of national security and foreign affairs. They point to a long history of executive discretion in trade policy, citing examples from Washington's Neutrality Proclamation to modern sanctions regimes. Some scholars sympathetic to the administration contend that tariffs are fundamentally regulatory tools, not taxes—their purpose is to shape behavior and protect domestic industry, with revenue collection being merely incidental. They distinguish tariffs from direct taxation by noting that Americans can avoid tariffs by purchasing domestic goods, whereas taxes on income or property are inescapable. The administration further argues that the emergency is real: unfair trade practices, supply chain vulnerabilities exposed by recent crises, and threats to critical industries justify swift executive action that Congress, gridlocked by partisan division, cannot provide. To read IEEPA narrowly, they contend, would hobble presidents facing genuine threats to national security and economic stability—precisely when executive flexibility matters most.

Yet this argument proves too much. The same logic would authorize presidents to impose income surtaxes during fiscal emergencies or property levies during infrastructure crises—so long as they called it "regulation" and declared an emergency. The administration's framework would make the Constitution's careful allocation of taxing power to Congress dependent entirely on how creatively presidents label their revenue-raising schemes.

The Major Questions Rears Its Head

The Supreme Court has repeatedly invoked the major questions doctrine to strike down executive actions that discover vast powers in modest statutory grants. The Court invalidated the CDC's eviction moratorium, the EPA's generation-shifting rule, and President Biden's student loan forgiveness—all for want of clear congressional authorization. As the Court explained in West Virginia v. EPA, Congress does not "hide elephants in mouseholes."

If forgiving student loans requires clear congressional authorization, how can the power to tax spring from statutory silence?

It would be awkward indeed for this Court to be perceived as narrowly construing executive-empowering language under President Biden, as in the landmark student loan case, while doing the exact opposite when confronting President Trump. The major questions doctrine either constrains executive overreach consistently or reveals itself as a weapon of partisan convenience.

Should Congress choose to grant emergency tariff authority in the future with its eyes open, then the Court might need to revisit whether such delegation violates non-delegation principles—"delegation running riot" in the famous language of Schechter Poultry. But if this Court wrongly reads the current statute to empower presidential dictatorship over the tax code, it will be hard for Congress to claw back its constitutional role and power. Any attempted repeal or president-limiting modification will likely have to surmount a presidential veto.

To return to the biggest issue in this case: reading a bland law that nowhere uses the words "revenue" or "taxes" to empower President Trump or any president to rewrite the tax code unilaterally risks creating a dictatorship broadly reminiscent of Charles I in the 1600s and totalitarian regimes in the 1900s.

The wise words of Justice Jackson ring true in the case at hand. Executive power "has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations." This generates "pressure... for action [that] may be irresistible especially in... time of crisis." But the Constitution's response to such pressure is not acquiescence but structure—dividing power precisely when unity seems most expedient.

If the Court upholds these tariffs, it will not merely affect trade policy. Every future president will understand that emergency declarations unlock taxation authority. A Democratic president might declare a climate emergency and impose carbon tariffs to fund green infrastructure. A Republican might proclaim a border crisis and tax remittances to fund immigration enforcement. The limiting principle disappears once "regulate" means "tax."

This case presents the Court with a choice between two stories about our Constitution. In one story, the text is infinitely plastic, its terms expandable whenever presidents declare emergencies, its structures yield to necessity. In the other story—the one I believe—the Constitution's prohibitions and structures matter most precisely when they're inconvenient, when emergencies tempt us toward expediency, when presidents promise action that Congress won't deliver.

Four hundred years of struggle against executive taxation without representation should not end with statutory cleverness and emergency declarations. The principle for which the British Parliament dethroned and executed Charles I, for which Americans fought a revolution, for which the Framers designed our Constitution, deserves better than death by creative interpretation.

The Court should read IEEPA to mean what it says: presidents may regulate international commerce during emergencies, using the specific tools Congress has granted. But they may not, through regulation's guise, exercise the one power the Framers most jealously reserved to the people's representatives—the power to tax.

 

We Celebrate the Constitution and Citizenship at a Time When Both Are Under Attack

Constitution Day, observed each year on September 17th, commemorates the day in 1787 when the delegates to the Constitutional Convention gathered in Philadelphia to sign what would become the original articles of our national charter. Of course, when we celebrate the Constitution today, we celebrate not only the document signed centuries ago, but the whole Constitution, which has been amended numerous times by We the People, making our nation incrementally freer, fairer, and more inclusive. Constitution Day’s full name, according to statute, is “Constitution Day and Citizenship Day.”  This year, both the Constitution and core concepts of citizenship are under attack, and they deserve our attention and protection more than ever.

Beginning in the first Trump administration, President Trump mused about limiting the Constitution’s birthright citizenship provision through executive order. Then, as now, legal experts have described why such an attempt would be at odds with the Constitution’s text and history. Nonetheless, in January 2025, President Trump issued an executive order purporting to limit birthright citizenship to children who have at least one parent who is a citizen or is lawfully admitted for permanent residence. This ignores the Fourteenth Amendment text, which states “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” As the Constitutional Accountability Center, for which I work, explained in an amicus brief we filed on behalf of an ideologically diverse group of constitutional law and immigration scholars in litigation challenging the Trump executive order, the Fourteenth Amendment’s enactment history makes clear that the Amendment means exactly what it says. Indeed, its Framers were well aware that the provision would grant citizenship to children whose parents were not citizens, including parents who were either in the country unlawfully or who did not intend to stay permanently.

While the Trump administration has attempted to whittle away citizenship in one context, it has fallen over itself to deploy citizenship to try to limit other constitutional rights. For instance, in the context of mass deportation plans, multiple Trump administration officials have opined that unlike citizens, noncitizen immigrants are not entitled to constitutional due process. The Constitution says no such thing. The Due Process Clause of both the Fifth and Fourteenth Amendments does not limit its protections to citizens, saying that “no person” shall “be deprived of life, liberty, or property, without due process of law.”  Even one of the most widely criticized shadow docket rulings from the Supreme Court—issued in the context of removals pursuant to President Trump’s invocation of the Alien Enemies Act—took care to note that every detainee has a right to meaningful notice and the chance to challenge one’s detention and removal before a judge.

President Trump has also tried to graft citizenship onto unrelated constitutional provisions, such as those relating to the Census. The first Trump Administration’s attempt to add a citizenship question to the 2020 Census was halted in 2019 by the Supreme Court. Now Trump has announced that he has instructed the Commerce Department to work on a new Census, and has reportedly suggested in social media posts that the new Census would exclude undocumented immigrants. It’s unclear whether this would be for the 2030 Census or some unprecedented, irregularly timed Census to take place before 2030. What is clear is that any such alteration would fly in the face the Fourteenth Amendment requirement that the Census count the “whole number of persons in each state.”  Equally clear is the Constitution’s assignment of significant Census decisions to Congress, not the President, something that even some high-ranking Trump administration officials have conceded.

And of course, these are only a few examples. Needless to say, if you care about the Constitution and citizenship, you should be concerned. Constitutional concepts of citizenship lie at the heart of who is considered part of the American family and how they participate in our democracy. When the Constitution’s text and its embedded concepts of citizenship aren’t protected, all Americans—irrespective of immigration status, citizenship, or political party affiliation—are harmed. The lower courts have had a strong record of halting some of the most egregious examples of unconstitutional Trump administration policies. This effort in the courts is essential, but it might not be sufficient. The Constitution and its core citizenship concepts will need to be defended by Congress and the American public, too. Our future depends on it.