(DCNF)—Harvard law professor emeritus Alan Dershowitz said Wednesday on Newsmax that President Donald Trump’s legal team missed a crucial opportunity before the Supreme Court.
The Supreme Court might move to curb Trump’s use of emergency powers to impose tariffs after signaling skepticism toward his legal team’s defense during oral arguments Wednesday. Appearing on “The Record with Greta Van Susteren,” Dershowitz said Trump’s lawyers failed to center their argument on constitutional authority and foreign policy powers.
“I wish his lawyers would have consulted more widely with people outside who could have given them advice about how to argue to this Supreme Court,” Dershowitz said. “And they may have lost some of the middle justices, Roberts and Gorsuch, and others. And so if you have to make a prediction, Oliver Wendell Holmes once said the job of a lawyer is to predict what the courts will do.”
Dershowitz added that Trump could still return to court on constitutional grounds but warned it would take time.
“Based on the arguments, I would have to predict the president might very well lose this. Now he could come back, perhaps, and re-litigate this thing on constitutional grounds, but it would take time to do it,” Dershowitz said.
Dershowitz defended the skill of both legal teams but criticized the business lawyers’ suggestion that Congress could easily resolve the matter.
“The lawyers on both sides are excellent. But Neil, the lawyer for the businesspeople, basically said, ‘Oh, don’t worry. If the president doesn’t have the power, you just go across the street and get Congress to do it.’ That doesn’t recognize the realities of how Congress operates,” Dershowitz said. “If the president loses the power to use these things as a way of leveraging foreign policy, he may lose it for good. And it may give to Congress the power, more power to make foreign policy and to make military decisions than the Constitution allocated to them.”
Trump cited two national emergencies to justify his tariff actions, first linking the fentanyl crisis to new duties on Canada, China and Mexico in February, then invoking trade imbalances in April to roll out “Liberation Day” import taxes beginning at 10% and rising by country.
As Dershowitz pointed out, Trump’s legal team centered its case on statutory interpretation rather than constitutional authority, with Solicitor General John Sauer arguing that Congress’ grant of power to “regulate importation” under the International Emergency Economic Powers Act inherently includes tariffs even without using the term. Chief Justice John Roberts pushed back, warning that such a reading would give the president vast and indefinite power to tax any import from any country.
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