Steelman Analysis
Our Thesis (Restated)
The Trump administration has pioneered "constitutional arbitrage" -- switching between statutory authorities faster than courts can adjudicate each one -- rendering judicial review structurally incapable of checking executive power, and this is more dangerous than outright defiance because it hollows out the courts invisibly.
Primary Counterargument
The system is working exactly as designed. What the article calls "arbitrage" is what separation of powers looks like under stress -- and the tariff case proves it.
The strongest counterargument is not that the article is wrong about the pattern, but that it fundamentally mischaracterizes what the pattern means. When the Supreme Court struck down IEEPA tariffs and Trump reimposed under Section 122, the president did not "route around" the Court. He was constrained by it. The tariff rate dropped from as high as 145% to a maximum of 15%. The duration went from indefinite to 150 days. The scope went from country-specific punitive rates to a uniform global floor. As Justice Kavanaugh noted in dissent, the ruling was unlikely to "greatly restrict Presidential tariff authority going forward" -- but that is because Congress itself passed multiple statutes delegating tariff authority, not because the president invented a loophole. The Court said "not under this law." The president said "fine, I will use the law Congress actually intended for this purpose." That is not arbitrage. That is a constitutional system generating friction, imposing costs, and forcing the executive into narrower channels. The article's own evidence -- a 90% reduction in tariff rates -- is the single most powerful data point against its thesis.
More broadly, the fact that 39 judges appointed by five different presidents -- including Trump's own appointees -- have ruled against the administration is not a sign of judicial impotence. It is a sign of judicial independence functioning across ideological lines. The article's framing treats every court ruling that fails to permanently and irrevocably end a policy objective as evidence of failure. But that is not what courts are designed to do. Courts adjudicate the legality of specific actions under specific authorities. They do not issue permanent injunctions against policy goals. The president is entitled to pursue tariff policy, immigration enforcement, and federal workforce management. Courts tell him how he may and may not do so. The fact that he then pursues the same goals through legally permissible channels is not a constitutional crisis -- it is constitutional governance.
The article's "constitutional arbitrage" framework smuggles in an assumption that should be stated and defended rather than taken for granted: that when the executive loses under Authority A and succeeds under Authority B, this represents a failure of judicial review rather than its proper operation. Under this assumption, judicial review only "works" if it can permanently block any policy objective a president pursues, regardless of how many legitimate statutory authorities Congress has provided. That is a conception of judicial supremacy that has never existed in American constitutional law and that would itself represent a radical expansion of judicial power at the expense of the elected branches.
Who Makes This Argument
This position is held by conservative legal scholars in the Federalist Society tradition, libertarian constitutionalists at organizations like the Competitive Enterprise Institute and Cato Institute (on the structural questions, if not on the policy substance), and -- critically -- by the majority opinion itself in Learning Resources v. Trump. Chief Justice Roberts's opinion does not express alarm that the president might use other authorities. It carefully limits its holding to IEEPA. The six-justice majority, including Gorsuch and Barrett, implicitly endorsed the legitimacy of the president turning to properly delegated alternatives. CEI explicitly framed the ruling as the system working: "Separation of powers is a liberty-protecting principle, not a technicality." The Council on Foreign Relations catalogued the alternative authorities (Sections 122, 232, 301, 338) not as evidence of a loophole but as the landscape of properly delegated congressional power.
Why It Has Merit
This counterargument has genuine force for several reasons. First, the tariff constraint is real and material -- a 90% rate reduction and a 150-day time limit are not trivial. Businesses, trading partners, and markets immediately began operating under the new, lower parameters. Second, the alternative authorities the president is now using were enacted by Congress with their own built-in constraints -- Section 122's 15% cap, 150-day limit, and requirement for uniform application are features Congress designed, not bugs the president is exploiting. Third, the counterargument correctly identifies that the article's framework implies a standard for judicial review -- permanent policy blockage -- that has never been the norm and would raise its own serious separation-of-powers concerns. Fourth, the historical record supports the idea that executive-judicial friction is a permanent feature of the system: Lincoln, FDR, Obama, and every ambitious president has sought alternative legal channels after court setbacks. The question of whether Trump's version is qualitatively different is genuinely debatable, not self-evident.
Where It Falls Short
The counterargument works best on the tariff case in isolation and weakens considerably when applied to the full pattern across domains. The tariff steelman depends on the existence of legitimate, properly constrained alternative authorities -- but in the immigration context, the pattern looks different. When the administration was blocked from using the Alien Enemies Act for mass deportations, pivoting to TPS termination to strip legal status from 350,000 Venezuelans and then deporting them through "standard proceedings" is not the president accepting a judicial constraint; it is the president achieving the identical outcome through a pathway designed for a different purpose. The steelman also cannot explain the Washington Post's finding that the administration defied, delayed, or manipulated court rulings in one-third of all adverse decisions, nor the Cato Institute's finding that officials misled courts in 57% of immigration cases. Legitimate authority-switching does not require lying to judges. And the Abrego Garcia retaliatory prosecution -- criminally charging someone who won a deportation case -- is not "finding an alternative legal channel." It is punishing people for exercising their legal rights. The counterargument works for the cleanest cases and collapses on the dirtiest ones, which is precisely where the article's thesis draws its deepest strength.
Secondary Counterarguments
The Blame Belongs to Congress, Not the Executive
A distinct and powerful counterargument -- advanced most forcefully by the libertarian right -- holds that if the president can cycle through multiple statutory authorities to achieve the same policy goal, the fault lies not with the executive for using what is available but with Congress for providing so many overlapping delegations in the first place. CEI has argued explicitly that "it is Congress's turn" to reclaim its authority. The Congressional Research Service identifies six separate statutory provisions controlling presidential tariff authority. The Trade Act of 1974, the Trade Expansion Act of 1962, IEEPA (1977), and various sectoral authorities create a patchwork of delegated power that no president invented and every president has used. Under this view, the article's "constitutional arbitrage" framework is correct in its diagnosis but wrong in its villain: the problem is not an overreaching executive but an abdicating legislature. Congress could, at any time, consolidate tariff authority, narrow delegation, or impose mandatory compliance windows after adverse rulings. That it has not done so is a failure of the legislative branch, not evidence of executive lawlessness. This counterargument is uncomfortable because it is substantially true -- and because the article's framework, by focusing on the executive, risks letting Congress off the hook for the structural conditions that make arbitrage possible.
The "Novelty" Claim Is Overstated -- This Is Just Executive Power at Scale
Historians and conservative commentators will argue that what the article calls "constitutional arbitrage" is simply what aggressive executive governance has always looked like, accelerated by modern information technology and a more complex regulatory state. Lincoln did not just defy Merryman -- he suspended habeas corpus across the entire Union, arrested state legislators, and shut down newspapers, all while citing alternative constitutional provisions when challenged. FDR responded to adverse rulings by threatening to restructure the judiciary itself. Obama's DACA program was created specifically because Congress would not pass the DREAM Act -- the executive achieved through prosecutorial discretion what it could not achieve through legislation, using one authority (enforcement discretion) to accomplish what another (legislation) had failed to deliver. The Trump administration may be doing this across more policy domains simultaneously, but the technique of finding alternative legal mechanisms after judicial setbacks is as old as the presidency itself. The article's claim that this is "qualitatively different" rests heavily on the assertion that the speed and systematization are new -- but this is a difference of degree, not kind. Every generation believes its executive power crisis is unprecedented. The system has absorbed each one.
Courts Have Actually Gotten Stronger Post-CASA, Not Weaker
A more technical counterargument holds that the elimination of nationwide injunctions in Trump v. CASA -- which the article frames as a structural weakening of judicial power -- actually corrects a problematic innovation that was itself constitutionally dubious. Nationwide injunctions were a relatively recent development, growing dramatically only after 2010. Many legal scholars across the political spectrum, including some progressives, had criticized them as a form of judicial overreach: a single district judge in Texas or Hawaii could effectively set national policy by blocking executive action for the entire country. The CASA ruling forces challengers to use class actions, which require more rigorous demonstration of harm, more careful judicial scrutiny, and result in more durable rulings that are harder to overturn on appeal. Under this view, the post-CASA landscape produces better judicial review -- more deliberate, more legally sound, and less vulnerable to forum-shopping by either side. The article's assumption that faster and broader equals better is debatable; slower and more thorough judicial review may ultimately produce stronger constraints on executive power, even if the timeline is less satisfying to those who want immediate results.
Our Weak Points
1. The tariff case is simultaneously our best example and our worst evidence. The opening hook -- Supreme Court says no, president reimplements within hours -- is viscerally powerful. But the substance undermines the "arbitrage" framing: a 90% rate reduction, a 150-day time limit, and a uniformity requirement represent exactly the kind of constraint judicial review is supposed to produce. If we lead with this and the reader does the math, they may conclude the system worked. The article must honestly grapple with the fact that the tariff reimposition, taken in isolation, is a story about courts succeeding, not failing.
2. Lumping four distinct phenomena under one label risks conceptual overreach. Authority-switching (tariffs), semantic compliance (funding freeze), retaliatory prosecution (Abrego Garcia), and procedural rule changes (CASA) are genuinely different things. A reader could reasonably object that calling all of them "constitutional arbitrage" stretches the metaphor past its breaking point. The tariff switch is a president using an alternative statute Congress enacted. The Abrego Garcia prosecution is retaliatory abuse of prosecutorial power. These are not the same category of action, and treating them as a single phenomenon may sacrifice analytical precision for rhetorical impact.
3. The "speed" claim is more asserted than demonstrated. Outside the tariff case (same-day reimposition, precisely timed), the speed-of-reimposition argument is fuzzy. The TPS termination process, while serving the same ultimate goal as the blocked Alien Enemies Act deportations, took months to play out. The funding freeze maneuver happened within days but involved different policy mechanisms. The article claims speed is the key variable -- that the executive moves faster than courts can adjudicate -- but the evidence for this is strongest in exactly one case and weaker across the broader pattern.
4. The article does not adequately address Congress's role. If the core problem is that too many overlapping statutory authorities exist, the most precise diagnosis points to legislative abdication, not executive innovation. The article risks treating the president as the primary agent of democratic erosion when Congress's failure to consolidate or limit its delegations is at least equally responsible. A reader sympathetic to the libertarian critique will notice this gap.
5. The historical precedent problem is real, not cosmetic. Asserting that Trump's approach is "qualitatively different" from Lincoln's or FDR's requires a clear articulation of what makes systematization and speed constitute a difference in kind rather than degree. The article's current framing -- "neither predecessor systematized the authority-switching technique" -- is an assertion, not an argument. Lincoln's simultaneous prosecution of an unauthorized war, suspension of habeas corpus, arrest of political opponents, and suppression of the press was itself a systematic, multi-domain assertion of executive power over judicial objections. The article needs a sharper account of what exactly makes the Trump pattern categorically new.
Recommended Handling
Address the tariff constraint head-on in the first third. Do not wait for the reader to notice the 90% rate reduction. State it explicitly, grant that it represents a meaningful constraint, and then pivot to the question the constraint raises: if the president can achieve 15% tariffs under Section 122 today, launch Section 232 investigations for specific sectors tomorrow, and pursue Section 301 actions next month, does the sequential use of properly delegated authorities still constitute "constraint" when the cumulative effect approximates the original policy? The steelman is strongest on the single case; our thesis is strongest on the pattern. Force the comparison to the pattern early.
Distinguish the four variants more carefully and concede that some are stronger than others. Authority-switching (tariffs) is the most legally defensible variant and the one where the steelman has the most force. Retaliatory prosecution (Abrego Garcia) and misleading courts (Cato data) are the least defensible and the ones where the steelman collapses entirely. The article should explicitly tier the variants: some are within the bounds of aggressive-but-legitimate governance, and some cross the line into bad faith. The thesis gains credibility by conceding the spectrum rather than treating everything as equally alarming.
Proactively raise the "blame Congress" argument. This is the counterargument the article is most vulnerable to, and it is also the one most aligned with the publication's editorial stance (which includes holding institutions accountable). Acknowledge that Congress created the conditions for arbitrage by delegating overlapping authorities without consolidation. Then argue that this does not excuse the executive from the obligation to comply with the spirit of judicial rulings -- Congress's failure to padlock the toolkit does not make it acceptable for the president to use every tool simultaneously to circumvent a court order.
Address the historical precedent directly and with specificity. Do not settle for the assertion that Trump's approach is different because it is "systematized." Identify the specific structural variable: prior presidents clashed with courts over specific crises (the Civil War, the Depression) in specific domains. Trump's innovation is the routinization of authority-switching as a generalized governance technique across every major policy domain simultaneously, in the absence of a genuine national emergency. Lincoln defied one court in the context of an actual civil war. Trump is running the playbook across tariffs, immigration, spending, and the federal workforce during peacetime. The distinction is not speed alone -- it is the application of crisis-governance techniques to ordinary policymaking.
Give the CASA counterargument a fair hearing and then explain why "better" judicial review that arrives too late is functionally equivalent to no judicial review. The argument that class actions produce more durable rulings is genuinely correct. But durability means nothing if the policy has already been implemented, facts on the ground have changed, and reversal is practically impossible. Acknowledge the legal merit; challenge the practical relevance.
Do not give airtime to the weakest versions of the opposition. The "Trump is just doing what presidents do" take from Fox News commentators and the "courts are liberal activists who deserve to be ignored" take from MAGA media are not worth engaging. The article should engage with the serious constitutional arguments -- the ones advanced by the Roberts majority, by CEI, by Kavanaugh's dissent, and by legal historians -- and let the less serious versions go unmentioned.