Amicus Curiae Brief — Learning Resources, Inc., et al., Petitioners v. Donald J. Trump, President of the United States, et al.

No. 24-1287

In the

Supreme Court of the United States

____________

LEARNING RESOURCES, ET AL.,

Petitioners,

v.

DONALD J. TRUMP, ET AL.,

Respondents.

___________

On Petition for a Writ of Certiorari

Before Judgment to the

United States Court of Appeals for the

District of Columbia Circuit

____________

BRIEF OF WASHINGTON LEGAL FOUNDATION AS

AMICUS CURIAE SUPPORTING PETITIONERS

____________

Cory L. Andrews

Zac Morgan

Counsel of Record

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

zmorgan@wlf.org

June 18, 2025

i

QUESTION PRESENTED

Whether 50 U.S.C. § 1702(a)(1)(B) grants the

President legal authority to impose tariffs.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

TABLE OF AUTHORITIES .................................... iii

INTEREST OF AMICUS CURIAE .......................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................. 1

ARGUMENT ............................................................. 3

I.

IEEPA DOES NOT GIVE THE PRESIDENT

LEGAL AUTHORITY TO IMPOSE TARIFFS ...... 3

II.

ONLY THIS COURT CAN PROVIDE

CERTAINTY AND FINALITY ON

THAT QUESTION ......................................... 7

CONCLUSION ........................................................ 10

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Ala. Ass’n of Realtors v. U.S. Dep’t of HHS,

594 U.S. 758 (2021)........................................2, 3, 7

Biden v. Neb.,

600 U.S. 477 (2023)........................................2, 6, 7

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000)........................................2, 6, 7

Lucia v. SEC,

585 U.S. 237 (2018)................................................1

Nat’l Fed’n of Indep. Bus. v. U.S. Dep’t of

Labor, Occupational Safety & Health

Admin.,

595 U.S. 109 (2022)............................................1, 7

Sacks v. Office of Foreign Assets Control,

466 F.3d 764 (9th Cir. 2006)..................................4

Utility Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014)........................................3, 6, 9

V.O.S. Selections, Inc. v. Trump,

Case No. 25-1812

(Fed. Cir. 2025) ..................................................7, 9

V.O.S. Selections, Inc. v. Trump,

Case No. 25-66

(Ct. of Int’l Trade May 28, 2025) ...........................9

iv

W. Va. v. EPA,

597 U.S. 697 (2022)........................................2, 6, 7

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001)................................................6

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952)................................................1

Constitutional Provisions

U.S. Const. art. I, § 8...................................................3

U.S. Const. art. II ....................................................1, 3

U.S. Const. art. III ......................................................9

Statutory Provisions

19 U.S.C. § 1862 ..........................................................5

19 U.S.C. § 2132(a)......................................................8

50 U.S.C. § 1702(a)(1)(B) ..................................... i, 4-5

Executive Orders

Executive Order 14193 ...............................................3

Executive Order 14194 ...............................................3

Executive Order 14195 ...............................................3

Executive Order 14231 ...............................................3

Executive Order 14232 ...............................................3

v

Executive Order 14245 ...............................................3

Executive Order 14256 ...............................................3

Executive Order 14257 ...........................................3, 4

Executive Order 14259 ...........................................3, 8

Executive Order 14266 ...............................................3

Executive Order 14298 ...........................................3, 8

Other Authorities

Alan Greenspan and Adrian Wooldridge,

Capitalism in America: A History (2018) ..............2

Bureau of Economic Analysis,

“U.S. International Trade in Goods and

Services, December and Annual 2024,”

U.S. Dep’t of Commerce (Feb. 5, 2025) ............. 7-8

Pub. Law. 95-223.........................................................4

Scott Lincicome, “Toys, Pencils, and Poverty

at the Margins,”

Cato Inst., May 7, 2025 .........................................8

Xuan-Thao Nguyen and Jeffrey A. Maine,

Attacking Innovation,

99 B.U. L. Rev. 1687 (2019) ............................... 8-9

Statement of President Carter on Signing

H.R. 7738 Into Law (Dec. 28, 1977) ..................4, 6

1

INTEREST OF AMICUS CURIAE *

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. WLF promotes free markets,

individual rights, limited government, and the rule of

law. It often appears as amicus before this Court in

cases in which one branch of the federal government

has usurped the powers of another, Lucia v. SEC, 585

U.S. 237 (2018), and has urged the Court to review

such cases on an expedited basis when that unlawful

action risks significant uncertainty for the American

economy, Nat’l Fed’n of Indep. Bus. v. U.S. Dep’t of

Labor, Occupational Safety & Health Admin., 595

U.S. 109 (2022) (NFIB).

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case should skip the line for two reasons.

First, the President’s legal basis for his

authority to impose tariffs is wrong. “The President’s

power, if any, to issue” such an “order must stem

either from an act of Congress or from the

Constitution itself.” Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 585 (1952). While President

Trump claims no Article II tariff power, he does claim

that the International Emergency Economic Powers

* No party’s counsel authored any part of this brief. No

person or entity, other than Washington Legal Foundation and

its counsel, paid for the brief’s preparation and submission.

Because the brief is filed more than 10 days before the deadline,

the brief itself serves as notice to all parties.

2

Act (IEEPA) functions as such. But IEEPA does not

involve tariff authorities at all. App. 21a-22a.

The President’s resort to two “vague terms,” W.

Va. v. EPA, 597 U.S. 697, 723 (2022) (internal

quotation marks and citation omitted), separated

from each other by sixteen words and tucked away in

a 76-word operative subsection, are precisely the sort

of “cryptic,” FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 160 (2000), claim to vast

executive

authority

with

major

economic

consequences that this Court has repeatedly

condemned. Cf. Biden v. Neb., 600 U.S. 477 (2023);

Ala. Ass’n of Realtors v. U.S. Dep’t of HHS, 594 U.S.

758 (2021).

Second, so long as the President claims this

power, businesses throughout the Nation must

assume he will continue to wield it. In prior cases

when the Court has granted the writ before judgment,

tens or hundreds of billions of dollars in activity were

in issue. Biden, 600 U.S. at 502; Ala. Ass’n of Realtors,

594 U.S. at 764. Here, the President’s actions affect

trillions of dollars’ worth of economic activity, with a

direct impact on the purchasing, production, and

pricing decisions of every American business that

touches, even remotely, international trade.

Businesses “crave certainty as much as almost

anything: certainty is what allows them to make longterm plans and long-term investments.” Alan

Greenspan and Adrian Wooldridge, Capitalism in

America: A History 258 (2018). Already the President

has modified some of these tariffs in response to

outside events. Already one court has extinguished

the tariffs wholesale—only to see that judgment

3

formally stayed. Businesses up and down the supply

chain cannot plan around, or wait for, further

executive modifications, the resolution of stop-andstart injunctions, or circuit percolation. Only this

Court can provide the finality and certainty that

America’s businesses need.

ARGUMENT

I.

IEEPA DOES NOT GIVE THE PRESIDENT

LEGAL AUTHORITY TO IMPOSE TARIFFS.

No Article II tariff power exists. The

Constitution gives the tariff power to Congress, and

only Congress can authorize the President to “lay and

collect Taxes, Duties, Imposts, and Excises.” U.S.

Const., art. I, § 8.

So the President must point to clear

authorization in statutory text to unilaterally set

tariff rates. Ala. Ass’n of Realtors, 594 U.S. at 764

(“We expect Congress to speak clearly when

authorizing [the Executive] . . . to exercise powers of

‘vast economic and political significance’”) (quoting

Utility Air Regulatory Grp. v. EPA, 573 U.S. 302, 324

(2014)).

The President points to IEEPA. See, e.g.,

Executive Orders 14298, 14266, 14259, 14257, 14256,

14245, 14232, 14231, 14195, 14194, 14193. He has

done so to impose specific tariffs on some of the

Nation’s largest trading partners. E.g., Executive

Orders 14193 (Canada), 14194 (Mexico), 14195

(China). He has done so to impose reciprocal rates on

other countries to improve America’s balance-ofpayments. Executive Order 14257. And he has done

4

so to impose a more-or-less universal floor tariff of ten

percent on all foreign goods sold in the United States.

Id. Some of those tariffs have been altered or held in

abeyance (for now), but not all. What certainly hasn’t

changed is the President’s claim that IEEPA gives

him a free hand to tariff.

Yet IEEPA does not vest the President with

any power to issue tariffs. “IEEPA does not use the

words ‘tariffs’ or ‘duties,’ their synonyms, or any other

similar terms like ‘customs,’ ‘taxes,’ or ‘imposts.’” App.

21a. This is unsurprising. IEEPA is an economic

sanctions statute with wartime or near-wartime

measures in mind. Pub. Law. 95-223 (enacting IEEPA

“[w]ith respect to the powers of the President in time

of war or national emergency”). President Carter, who

signed IEEPA, deemed it a “largely procedural”

statute which, if anything, “place[d] additional

constraints” on “the President’s emergency economic

powers.” Statement of President Carter on Signing

H.R.

7738

Into

Law

(Dec.

28,

1977),

https://perma.cc/3YDP-NW3Z; Sacks v. Office of

Foreign Assets Control, 466 F.3d 764, 776 (9th Cir.

2006) (“IEEPA was passed by Congress to counter the

perceived abuse of emergency controls by [P]residents

to unilaterally sanction foreign governments or

interfere with international trade in non-emergency,

peacetime situations”).

Even so, the President—the only Chief

Executive to ever use IEEPA as a tariffing

authority—finds Congressional authorization in this

provision:

[T]he President may, under such

regulations as he may prescribe, by

5

means of instructions, licenses, or

otherwise . . . investigate, block during

the pendency of an investigation,

regulate, direct and compel, nullify, void,

prevent or prohibit, any acquisition,

holding, withholding, use, transfer,

withdrawal, transportation, importation

or exportation of, or dealing in, or

exercising any right, power, or privilege

with respect to, or transactions

involving, any property in which any

foreign country or a national thereof has

any interest by any person, or with

respect to any property, subject to the

jurisdiction of the United States[.]

50 U.S.C. § 1702(a)(1)(B) (emphasis supplied).

The district court correctly rejected this openended reading, which conflates the power to regulate

with the power to tax. App. 23a (“To regulate is to

establish rules governing conduct; to tariff is to raise

revenue through taxes on imports or exports”).

Neither the investigative powers discussed before the

word “regulate,” nor the sixteen words between

“regulate” and “importation,” raise even the ghost of

a tariff authority. Far from rote rate-setting of

customs duties, those sixteen words involve

compellence,

voidance,

prevention—traditional

national-security or wartime aims one would expect

in a sanctions authority.

After all, Congress has already enumerated the

circumstances under which the President may impose

tariffs—as opposed to sanctions or an embargo—for

national security reasons. 19 U.S.C. § 1862 (requiring

6

time-delimited investigation and report by the

Commerce Secretary before the President may

impose new tariffs for “[s]afeguarding national

security”). IEEPA’s “largely procedural” text neither

adds to nor subtracts from that grant of authority.

Statement of President Carter on Signing H.R. 7738

Into Law (Dec. 28, 1977).

In sum, the President rests his legal

justification on two plucked words, sixteen apart (out

of 76 operative words in the relevant subsection), with

one of those plucked words given an uncommon

meaning. App. 22a (“‘Tariff’ and ‘regulate’ also take

different plain meanings”). “Extraordinary grants of

regulatory authority,” such as a unilateral

Presidential writ to impose tariffs, “are rarely

accomplished through ‘modest words,’ ‘vague terms,’

or ‘subtle device[s].’” W. Va., 597 U.S. at 723 (quoting

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468

(2001)) (brackets in original); cf. Utility Air

Regulatory Grp., 573 U.S. at 324 (“When an agency

claims to discover in a long-extant statute an

unheralded power to regulate ‘a significant portion of

the American economy’” courts must “typically greet

its announcement with a measure of skepticism”)

(quoting Brown & Williamson, 529 U.S. at 159).

The President’s reliance on “regulate . . .

importation” sings in the same key as past

unconstitutional Executive Branch practice that

purported to find remarkable Congressional

delegations of authority in a pocket of the U.S. Code.

“Regulate” no more grants the Executive a tariff

power than “waive or modify” granted a power to

cancel debt, Biden, 600 U.S. at 506, “necessary”

granted a power to freeze evictions nationwide, Ala.

7

Ass’n of Realtors, 594 U.S. at 765, or “drug” gave carte

blanche to regulate tobacco products. Brown &

Williamson, 529 U.S. at 125.

In short, IEEPA delegates no general tariff

power to the Executive. Such “a sweeping and

consequential authority” would not have been

granted to the Executive “‘in so cryptic a fashion’” as

the President’s strained reading of the statute

suggests. W. Va., 597 U.S. at 721 (quoting Brown &

Williamson, 529 U.S. at 160).

And the stakes are too high for this Court not

to say so now.

II.

ONLY THIS COURT CAN PROVIDE

CERTAINTY AND FINALITY ON THAT

QUESTION.

Whether here or in another case, this Court

must reckon with the Question Presented. See ECF

No. 53, V.O.S. Selections, Inc. v. Trump, Case No. 251812 (Fed. Cir. June 13, 2025) (setting accelerated

briefing schedule). There’s no reason to wait. As in

other separation-of-powers cases in which the Court

has expedited review, this is a straightforward

statutory interpretation case with “staggering”

economic consequences. Biden, 600 U.S. at 502; id. at

489 (noting grant of certiorari before judgment);

NFIB, 595 U.S. at 113 (emergency application for stay

granted).

It is an understatement to call the Question

Presented a trillion-dollar question. In 2024, the sum

of the Nation’s international trade in goods and

services was over seven trillion dollars. Bureau of

8

Economic Analysis, “U.S. International Trade in

Goods and Services, December and Annual 2024,”

U.S. Dep’t of Commerce (Feb. 5, 2025);

https://perma.cc/9XJT-237N. Whether IEEPA vests

the President with a unilateral tariff authority is a

question with purchasing, production, and pricing

decisions for every business in America that engages,

even in an ancillary fashion, in the international

marketplace.

If IEEPA is (properly) set to the side, the

Executive is largely capable of imposing tariffs only

via authorities that are either strictly time-limited, 19

U.S.C. § 2132(a), require a pre-tariff investigation, or

have a notice period before rates go into effect. App.

25a (discussing relevant statutes). Time limits

provide market actors with a date certain for

executive-only tariffs to expire. Time lags provide

market actors with lead time to adjust (or petition for

change).

But if IEEPA is a freestanding grant to the

President, rates can immediately change from day to

day under the Executive’s policy preferences. Indeed,

President Trump has repeatedly adjusted his IEEPAauthority tariff rates in response to business feedback

and negotiations with foreign nations. E.g., Executive

Orders 14298, 14259.

Figuring out how to, say, fill shelves with

enough

inventory

by

Christmas

in

such

circumstances is a heavy lift. Scott Lincicome, “Toys,

Pencils, and Poverty at the Margins,” Cato Inst., May

7, 2025, https://perma.cc/9Z2Y-UBP2 (observing that

“97 percent of toys purchased in the United States are

imported”). Tariffs are taxes, and “frequent tax

9

changes are the greatest factor in business

uncertainty affecting investment and growth.” XuanThao Nguyen and Jeffrey A. Maine, Attacking

Innovation, 99 B.U. L. Rev. 1687, 1738 (2019).

If the business community must live with the

uncertainty of a moving target, it at least ought to be

certain how the target can move. And if the IEEPA

tariffs are unlawful, then this business uncertainty is

being imposed on “a significant portion of the

American economy” for naught. Utility Air Regulatory

Grp., 573 U.S. at 324 (internal quotation marks and

citation omitted). Either way, there’s no reason to let

this drag on.

Leaving percolation to the lower courts risks

causing more harm. There have already been

moments where a single court extinguished the

President’s tariffs wholesale, V.O.S. Selections, Inc. v.

Trump, Case No. 25-66 (Ct. of Int’l Trade May 28,

2025), only for another to turn them back on. ECF No.

51, V.O.S. Selections, Inc. v. Trump, Case No. 25-1812

(Fed. Cir. June 10, 2025) (order granting stay).

Businesses throughout the supply chain should not

have to contend with further whipsawing from stopand-start injunctions, or plan around the possibility

of a circuit division developing on this multi-trilliondollar question.

As the sole judicial body with nationwide

authority and finality-of-opinion, U.S. Const. art. III,

only this Court can resolve this uncertainty for

America’s businesses and consumers.

10

CONCLUSION

The Court should grant the writ ahead of

judgment.

Respectfully submitted,

Cory L. Andrews

Zac Morgan

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

zmorgan@wlf.org

June 18, 2025