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, INC., ET AL,

Petitioners,

V.

DONALD J. TRUMP, PRESIDENT OF THE

UNITED STATES, ET AL.

Respondent.

_____________

On Petition for a Writ of Certiorari Before

Judgment to the United States Court of Appeals for

the District of Columbia Circuit

_____________

BRIEF OF AMICI CURIAE GEORGE F. ALLEN,

JOSHUA A. CLAYBOURN, JOHN C. DANFORTH,

RICHARD A. EPSTEIN, CHARLES T. HAGEL,

HAROLD HONGJU KOH, GERARD N.

MAGLIOCCA, MICHAEL B. MUKASEY, ALAN O.

SYKES, JOHN DANIEL TINDER, ALEXANDER

VOLOKH, PETER J. WALLISON, AND PHILIP

ZELIKOW IN SUPPORT OF PETITIONERS

_____________

DANIEL W. WOLFF

Counsel of Record

CROWELL & MORING LLP

1001 Pennsylvania Avenue,

NW

Washington, DC 20004

(202) 624-2500

dwolff@crowell.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF ARGUMENT.................................... 1

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

I.

Congress, not the President, has the power

to impose tariffs. ................................................ 3

II. IEEPA does not authorize tariffs. ...................... 6

A.

IEEPA does not mention tariffs—

intentionally so.......................................... 7

B.

Congress deliberately rejected tariff

authority In IEEPA................................. 11

C.

The government’s contrary

arguments lack merit.............................. 16

D.

Emergencies—even if real—do not

change the analysis. ................................ 18

E.

These tariffs are permanent policy

rather than emergency measures. ......... 19

F.

No President has ever used IEEPA

this way. .................................................. 21

G.

This Court rejects Executive Branch

efforts to arrogate to itself

sweeping power absent clear text. ......... 22

CONCLUSION ......................................................... 24

APPENDIX: LIST OF AMICI CURIAE

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alabama Association of Realtors v. DHHS,

594 U.S. 758 (2021) ........................................... 23

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ..................................... 21, 22

INS v. Chadha,

462 U.S. 919 (1983) ............................... 14, 18, 19

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928) ........................................... 24

Learning Res., Inc. v. Trump,

No. 25-1248, 2025 WL 1525376 (D.D.C.

May 29, 2025) .............................................. 16, 21

Morton v. Mancari,

417 U.S. 535 (1974) ........................................... 10

National Federation of Independent

Business v. DOL,

595 U.S. 109 (2022) ........................................... 23

Posadas v. Nat’l City Bank of N.Y.,

296 U.S. 497 (1936) ........................................... 10

Universal Interpretive Shuttle Corp. v.

Washington Metropolitan Area Transit

Commission,

393 U.S. 186 (1968) ........................................... 10

iii

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ........................................... 21

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ..................................... 22, 24

Yoshida Int’l, Inc. v. United States,

526 F.2d 560 (C.C.P.A. 1975)

..............................................12, 13, 14, 16, 17, 18

Yoshida International, Inc. v. United States,

378 F.Supp. 1155 (Cust. Ct. 1974) ................... 12

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ......................2, 13, 17, 19, 23

Statutes

19 U.S.C. § 1702(a)(1)(A) ......................................... 7

19 U.S.C. § 1862(a)................................................... 9

19 U.S.C. § 1862(c). .................................................. 9

19 U.S.C. § 2253(a)(3)(A) ......................................... 9

19 U.S.C. § 2411(c)(1)(B) .......................................... 9

50 U.S.C. § 1701(a)............................................. 7, 21

50 U.S.C. § 4302 ..................................................... 14

Trade Act of 1974, Pub. L. No. 93-618, §

122, 88 Stat. 1978, 1988–89 (1975) .................. 13

U.S. Constitution

U.S. Const. art. I, § 8................................................ 4

iv

Other Authorities

H.R. Rep. No. 95-459 (1977) ............................ 15, 16

S. Rep. No. 95-466, at 2 (1977) .............................. 15

INTEREST OF AMICI CURIAE1

Amici are constitutional scholars, legal

historians, public lawyers, a retired federal appellate

judge, a former United States Attorney General, and

three former United States Senators united by a

common conviction: the endurance of the American

Republic depends not only on elections or policy

outcomes, but on the faithful preservation of its

constitutional structure. They span the ideological

spectrum, joined not by partisanship but by a common

concern over the erosion of Congress’s Article I

authority.

Amici do not appear to defend or oppose any

particular trade policy. They file this brief because

they believe the Constitution draws bright lines

between legislative and executive power—and that

those lines are being blurred in ways that threaten

democratic accountability itself. Amici filed a

substantially similar brief in the district court in

support of plaintiffs.

SUMMARY OF ARGUMENT

Beginning in February 2025, President Trump

proclaimed a series of sweeping tariffs that,

collectively, touch nearly every imported good sold in

1 Pursuant to this Court’s Rule 37.2, amici provided timely notice

to all parties of their intent to file this brief. Further, pursuant

to this Court’s Rule 37.6, amici state that no counsel for any

party authored this brief in whole or in part. The Free to Choose

Network contributed funding for the preparation of this brief. No

entity or person, aside from amici curiae, their members, their

counsel, or the Free to Choose Network, made any monetary

contribution intended to fund the preparation or submission of

this brief.

2

the United States. These levies did not arise from

legislation. They were not the product of

congressional debate or any statutory process. Nor

were they supported by specific findings under

existing trade laws.

The central statute invoked by President Trump

as authority for these tariffs, the International

Emergency Economic Powers Act (“IEEPA”), cannot

bear this weight. Enacted in 1977 to rein in

presidential overreach, IEEPA allows the President

to impose sanctions in response to genuine

emergencies—not to reorder the economy in response

to long-term trends.

From amici’s perspective, this dispute is not about

the wisdom of tariffs or the politics of trade. It is about

who holds the power to tax the American people. May

a President, absent a clear delegation from Congress

and without guidance that amounts to an intelligible

principle, unilaterally impose sweeping tariffs under

laws never designed for that purpose? This is not a

debate over outcomes but a test of structure. It asks

not what should happen, but who decides.

The Constitution gives a clear answer. Article I

vests Congress—not the President—with the power to

“lay and collect Taxes, Duties, Imposts and Excises,”

and to “regulate Commerce with foreign Nations.”

Unless Congress has delegated that authority

through a valid and clearly bounded framework, the

President may not impose tariffs. As this Court made

plain in Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 585 (1952), “[t]he President’s power, if any,

to issue the order must stem either from an act of

Congress or from the Constitution itself.” Here,

neither exists.

3

The core principle urged by amici is this: IEEPA

does not grant the President the power to impose

tariffs. The Constitution places decisions about

taxation and commerce in Congress’s hands—not as a

formality, but as a structure of democratic

accountability rooted in the issues that originally led

to the creation of the United States. If upheld as it is

being invoked in this moment—as a fountainhead of

open-ended emergency power—nothing would

prevent any President from using IEEPA to reshape

U.S. economic policy, and indeed the global economy

more generally, without involving Congress. This is a

perversion of our constitutional order.

This Court should grant the petition for writ of

certiorari to reaffirm the core principles of our

Constitution: that Congress makes the law, and the

Executive enforces it; that major policies in particular

require explicit legislation; and that the Constitution

does not permit taxation by proclamation. These

principles are neither new nor partisan. They are the

foundation of the American republic.

ARGUMENT

I.

Congress, not the President, has the power

to impose tariffs.

From the founding of the Republic, the power to

impose tariffs—like the power to levy taxes—has

belonged exclusively to Congress. This is no formality.

This nation was born of the slogan “No taxation

without representation,” which means that the

authority to tax, raise revenue, and shape the public’s

4

economic obligations must rest with the people’s

elected representatives.2

The Constitution is explicit. Article I, Section 8

grants Congress the power “[t]o lay and collect Taxes,

Duties, Imposts and Excises” and “[t]o regulate

Commerce with foreign Nations[.]” U.S. Const. art. I,

§ 8. These provisions were not afterthoughts—they

were foundational. As James Madison wrote in The

Federalist No. 58, vesting control of taxation in the

legislature served as a deliberate check on executive

power, born of colonial resistance to Crown-imposed

duties levied without consent. That structural

safeguard ensures that only a geographically diverse

and representative Congress—not the Executive—

may impose economic burdens on the people.

Tariffs fall squarely within this constitutional

design. If the Framers had merely used the term

“taxes,” this would have encompassed tariffs, which

are taxes. But the Framers went out of their way to

list “duties” and “imposts” as within the legislative

domain. And no wonder: the Framers expected that

the “impost,” which meant tariffs, would generate

sufficient revenue to pay for most of the ordinary

operations of the federal government in peacetime.

McConnell, supra n.1, at 101. Tariffs lay at the core of

the taxing power.

Congress historically guarded this authority with

care. The Tariff Act of 1789—among the first laws

2 See Michael W. McConnell, The President Who Would Not Be

King: Executive Power Under the Constitution 100–07, 214–20

(2020) (explaining that the Constitution vests the powers to tax

and regulate commerce in Congress as part of its core structural

design).

5

passed under the new Constitution—imposed duties

across a broad range of imported goods. It was

introduced in the House, debated in both chambers,

amended, and enacted through the full machinery of

legislative deliberation. For more than a century,

tariff policy remained one of the most visible and

contested areas of congressional action, often shaping

party lines and national elections. Tariffs were the

centerpiece of Henry Clay’s “American System,” and

the so-called “Tariff of Abominations” was the

impetus for the Nullification Crisis of 1832-33.

Whether popular or unpopular, it was Congress—not

the President—that decided which goods to tax, at

what rates, and for what ends.

From the beginning of the Republic, Congress has

distinguished between delegations of authority to

impose taxes, including tariffs, which are the core of

Congress’s power of the purse, and delegations of

authority to impose embargoes and other non-tax

economic sanctions, which inextricably relate to

foreign policy, a largely presidential domain. Both

require express congressional delegation, but the

President has been given far more latitude to impose

and remove embargoes in the service of foreign policy

objectives, while tariff authority has invariably been

narrowly limited in time, amount, and purpose.

The Trade Act of 1974 and the Trade Expansion

Act of 1962 exemplify this approach. They allow the

Executive to address unfair trade practices or

national security threats, but only within carefully

prescribed limits. Even then, these statutes do not—

and constitutionally cannot—authorize the President

to create by executive fiat a sweeping new tariff

regime.

6

The Framers’ decision to allocate lawmaking to a

representative body and execution to a single

executive serves practical as well as theoretical

purposes.

Legislatures—especially

bicameral

legislatures—are by their nature deliberative, and

therefore slower to change course, by comparison to

the executive, whose singular virtues include “energy”

and “dispatch.” They well understood what Madison

called the “mischievous effects of a mutable

government,” and sought to guard against it by the

bicameral structure of Congress. The Federalist No.

62.3 Madison posed the question: “What prudent

merchant will hazard his fortunes in any new branch

of commerce when he knows not but that his plans

may be rendered unlawful before they can be

executed? What farmer or manufacturer will lay

himself out for the encouragement given to any

particular cultivation or establishment, when he can

have no assurance that his preparatory labors and

advances will not render him a victim to an

inconstant government?” Id. So, too, of American

merchants and manufacturers today. It is not an

argument for one tariff policy over another to observe

the wisdom of the Constitution’s assignment of these

powers to the branch most likely to pursue a

consistent and predictable policy.

II. IEEPA does not authorize tariffs.

The Administration’s reliance on IEEPA is

misplaced. Unlike every statute delegating tariffsetting authority, IEEPA makes no mention of tariffs,

duties, or imposts. No other President has ever

purported to impose tariffs under IEEPA. The

Https://guides.loc.gov/federalist-papers/text-61-70#s-lg-boxwrapper-25493449.

3

7

International Emergency Economic Powers Act:

Origins, Evolution, and Use, Cong. Res. Serv. R45618,

at 26 (2024). The statute was never meant, and has

never been understood, to authorize the President to

impose or revise tariffs. IEEPA’s text, context, and

legislative history point to a different purpose: to

empower the President to block or freeze foreign

assets and financial transactions in targeted,

temporary ways—not to raise revenue or rewrite the

core terms of international commerce.

The Trade Act of 1974 explicitly authorizes the

President to raise, lower, or revise tariffs, subject to

detailed substantive and procedural limitations. To

read IEEPA as implicitly granting carte blanche to

the President over tariffs without any such

limitations, whenever he declares the existence of an

emergency, would render the carefully wrought

provisions of the Trade Act pointless.

A.

IEEPA does not mention tariffs—

intentionally so.

IEEPA grants the President certain defined

authorities to regulate international economic

transactions upon declaring a national emergency “to

deal with any unusual and extraordinary threat . . .

to the national security, foreign policy, or economy of

the United States, if the President declares a national

emergency with respect to such threat.” 50 U.S.C. §

1701(a). Once that condition is met, the statute

permits the President to “investigate, regulate, or

prohibit . . . transfers of credit or payments . . .

involv[ing] any interest of any foreign country or a

national thereof, . . . by any person . . . subject to the

jurisdiction of the United States.” Id. § 1702(a)(1)(A).

The term “emergency” does not extend to every

8

problem that is serious or threatening, but only to

those that are “sudden, unexpected, or impending.”

Black’s Law Dictionary (2d ed.). The term “regulate .

. . importation” of foreign goods does not extend to

imposing taxes, but in context refers only to the

quantitative limitations traditionally part of the

President’s foreign affairs authority. See Tom

Campbell, Presidential Authority to Impose Tariffs, 83

La. L. Rev. 595, 606–07 (2023). Although Congress

may use its plenary taxing power to achieve

regulatory ends, the converse is not true: the power to

regulate is not the power to tax.

Upon a presidential proclamation of emergency

under IEEPA, Section 1702(b) permits the President

to “investigate, regulate, direct and compel, nullify,

void, prevent or prohibit” the acquisition, use, or

transfer of property owned by a foreign nation or

individual. This enables the executive branch, in a

foreign policy crisis, to block transactions, freeze

assets, and seize, or sequester foreign property. See

Patrick A. Thronson, Toward Comprehensive Reform

of America’s Emergency Law Regime, 46 U. Mich. J.L.

Ref. 737, 758 (2013) (“The IEEPA thus grants the

Executive Branch the power to freeze the assets of,

and prohibit financial transactions involving,

individuals designated by Executive Order. This

includes the power to prohibit bank payments and

transfers of credit insofar as they ‘involve’ an interest

of a designated person, entity, or country, and to

prohibit the holding, use, or transfer of property

implicating a relevant foreign interest.”). Notably,

Congress employed seven different verbs to capture

the intended types of economic sanction, but did not

include the term “tax” or any of its synonyms. If

9

Congress had intended to delegate the power of taxing

ordinary commerce, it surely would have said so.

Moreover, all the permitted presidential actions

have their effects abroad; IEEPA did not authorize

the President to tax or regulate the domestic activities

or property of Americans. Tariffs, unlike the foreign

sanctions explicitly authorized under IEEPA, are

taxes paid by Americans. They fall squarely within

Congress’s taxing power and, under the Constitution,

require the explicit consent of the people’s

representatives.

The absence of tariff language in IEEPA stands in

sharp contrast to statutes where Congress has

affirmatively granted such power. When Congress

intends to authorize duties, it says so. Section 301 of

the Trade Act of 1974 allows the President to “impose

duties or other import restrictions[.]” 19 U.S.C. §

2411(c)(1)(B). Under Section 201 of that same Act, the

President is empowered to “proclaim an increase in,

or the imposition of, any duty on the imported article”

or to “proclaim a tariff-rate quota[.]” Id. §

2253(a)(3)(A), (B). Similarly, Section 232 of the Trade

Expansion Act authorizes the adjustment of “duties”

on imports, 19 U.S.C. § 1862(a), and grants authority

to “adjust the imports.” Id. § 1862(c). In each case,

Congress spoke with clarity when it intended to

delegate authority over tariffs and it encumbered the

grant of authority with procedural and substantive

conditions and prerequisites.

As interpreted by the Administration, IEEPA

authorizes the President to impose, revoke, or change

tariffs for essentially any reason he describes as an

emergency, without complying with any of the

limitations that Congress attached to every statute

10

actually delegating tariff authority. According to this

argument, IEEPA silently repealed all those limits,

without any member of Congress seeming to notice.

That interpretation is contrary to the time-honored

rule that absent “a clearly expressed congressional

intention,” Morton v. Mancari, 417 U.S. 535, 551

(1974), “repeals by implication are not favored,”

Universal Interpretive Shuttle Corp. v. Washington

Metropolitan Area Transit Commission, 393 U.S. 186,

193 (1968). An implied repeal will only be found

where provisions in two statutes are in “irreconcilable

conflict,” or where the latter Act covers the whole

subject of the earlier one and “is clearly intended as a

substitute.” Posadas v. Nat’l City Bank of N.Y., 296

U.S. 497, 503 (1936). Nor should the court find that

the generalized language of IEEPA, which does not

even mention tariffs, supersedes the specific language

of laws granting the executive branch only

circumscribed authority to impose tariffs.

The more specific tariff-authorizing statutes do

not support the President’s current action either. The

President has not specifically invoked the authority of

Trade Act of 1974 or the Trade Expansion Act in

support of his April 2 tariffs, and for good reason.

Section 122 of the Trade Act authorizes import

surcharges of 15% for no more than 150 days “to deal

with large and serious United States balance-ofpayments deficits.” President Trumps’s tariffs exceed

that limit and would last far longer. Section 201 is

even farther afield. It allows targeted tariff increases

upon a finding by the United States International

Trade Commission that increased imports of a

product are causing substantial injury to the domestic

industry producing that product.

11

There have been no such findings here. Indeed,

across-the-board tariffs of 10% on all imports—

including nations where the United States enjoys a

trade surplus—bear no resemblance to the targeted

tariff increases contemplated by this provision.

Section 301 of the Act authorizes “duties or other

import restrictions” on foreign nations that have been

found—after notice and investigation—to have

committed unfair trade practices or violated trade

agreements with the United States. There have been

no such investigations, and no notice to the nations

involved.

In any event, this provision has largely been

superseded by investigations and proceedings under

the World Trade Organization framework. Section

232 of the Trade Expansion Act concerns national

security threats, yet no plausible finding has been

made—or could be made—that every product from

every nation in the world poses such a threat. The

Administration has not even invoked these statutes

in support of the tariffs at issue. Their existence,

however, makes it even more implausible that IEEPA

silently conveys limitless powers that these statutes

convey only through express, narrow limits and

accompanied by procedural safeguards.

B.

Congress deliberately rejected tariff

authority In IEEPA.

The context of the enactment of IEEPA makes

clear that Congress did not intend to delegate tariff

authority to the President. On the contrary, Congress

enacted IEEPA in 1977 in response to President

Richard Nixon’s unprecedented assertion of the

authority to increase tariffs, which courts reviewed

under the TWEA. The TWEA, a World War I–era

12

statute that originally applied only in wartime, gave

the President authority to impose economic sanctions

against other nations whose actions threaten our

national security. The TWEA did not mention tariffs,

and until 1971 was never invoked by any President to

impose them.

In that year, President Nixon declared a national

emergency and imposed a 10% import surcharge (an

extra tariff), which was subsequently justified under

the authority of the TWEA. Nixon asserted that

language in the TWEA allowing the executive to

“regulate . . . imports . . . by means of instructions,

licenses, or otherwise” was broad enough to permit

him to add a 10% surcharge to the existing tariffs that

had been imposed by Congress. This surcharge lasted

less than five months; it was withdrawn in December

1971. A zipper importer, Yoshida International, filed

a lawsuit challenging the legality of the surcharge

and seeking a refund of taxes paid. By the time a court

could render a decision, the import surcharge had

lapsed. Although a three-judge panel of the Customs

Court concluded that the tariff surcharge was illegal,

Yoshida International, Inc. v. United States, 378

F.Supp. 1155 (Cust. Ct. 1974), the Court of Customs

and Patent Appeals later reversed, upholding Nixon’s

action. It found that TWEA’s “express delegation” of

power to the President “is broad indeed,” such that

the power to impose tariffs could be inferred from the

power to “regulate” imports during a crisis, in the

absence of any statute “‘providing procedures’ for

dealing with a national emergency involving a

balance of payments problem such as that which

existed in 1971.” Yoshida Int’l, Inc. v. United States,

526 F.2d 560, 573–78 (C.C.P.A. 1975); id. at 570

(“legislation

delegating

restrictive

regulatory

13

authority cannot operate, merely upon the

declaration of an emergency, to the exclusion of other

legislative acts providing procedures prescribed by

the Congress for the accomplishment of the very

purpose sought to be attained by Presidential

Proclamation 4074” (citing Sawyer, 343 U.S. 579)).

While the Yoshida litigation was still pending,

Congress passed just such a statute. It repealed the

TWEA, replacing it with the Trade Act of 1974, Pub.

L. No. 93-618, § 122, 88 Stat. 1978, 1988–89 (1975)

(codified at 19 U.S.C. § 2132), which for the first time

gave the executive explicit authority to revise tariffs

in response to trade deficits – the very power

President Nixon had asserted, subject to strict

substantive and procedural guardrails. The Trade Act

allowed the President to increase tariffs through an

emergency import surcharge, but capped such

surcharges at 15% and permitted them to last no more

than 150 days in the absence of “affirmative

authorization” by Congress. Id. Moreover, the Act

required specific findings of unfair trade practices by

the nations subject to the surcharges. Congress thus

made clear that if a President is to have any

emergency tariff power, it must come from a

specifically tailored statute with clear parameters,

not an open-ended mandate.

Only after Congress passed the Trade Act did the

Court of Customs and Patent Appeals reverse the

trial court’s holding that the TWEA did not authorize

presidential tariff increases. By that time, Congress

had already enacted a carefully limited tariff

authority, which superseded the TWEA.

Congress then enacted IEEPA. Having just

enacted an explicit, and tightly limited, tariff

14

authority through the Trade Act, Congress did not

incorporate any tariff language into IEEPA.

Congress’s decision in 1977 to retain TWEA’s general

language (“regulate importation”) in IEEPA without

adding any tariff-specific provision strongly suggests

that lawmakers did not regard IEEPA as a vehicle for

import taxes. Congress had already “provided

procedures” for emergency tariffs. Yoshida, 526 F.2d

at 578, and those procedures – not IEEPA – would

govern future imposition of tariffs “dealing with a

national emergency involving a balance of payments

problem[.]” Id. IEEPA was meant for other tools of

economic sanctions (like freezing assets or

embargoing particular transactions), not for acrossthe-board duties.

Congress further cut back on the power

previously imparted by the TWEA in two ways. First,

it confined the original TWEA power to wartime, as

had been the case between 1917 and 1933. See 50

U.S.C. § 4302. In peacetime, the President was

permitted to impose regulations (with no mention of

tariffs) on imports only upon a declaration of

emergency under the Emergencies Act, which would

be subject to fast-track review and invalidation by

Congress. See Thronson, 46 U. Mich. J.L. Ref. at 743–

53. This effectively barred any future action of the

sort taken by President Nixon, unless it was approved

by Congress.

Over a decade later, the Supreme Court declared

legislative vetoes (like the one employed in the

Emergencies Act) unconstitutional, which stripped

Congress of the central safeguard it had enacted in

1977. INS v. Chadha, 462 U.S. 919 (1983). It is

nonetheless a fallacy to impute to Congress the

15

intention to give the President unilateral tariff

authority, when Congress voted specifically to subject

any such decisions to congressional review.

The House Committee Report leaves no

ambiguity: IEEPA was designed to provide “a new set

of authorities for use in time of national emergency

which are both more limited in scope than those of

[TWEA] and subject to various procedural

limitations[.]” H.R. Rep. No. 95-459, at 2 (1977)

(emphasis added). The Report expressed Congress’s

view that President Nixon’s tariffs had been upheld

under the TWEA for purposes “which would not be

contemplated in normal times.” Id. at 5. The Senate

Committee Report similarly emphasized that “the

purpose of” IEEPA was “to revise and delimit the

President’s authority” in response to earlier

presidential uses of TWEA. S. Rep. No. 95-466, at 2

(1977).

Nothing in IEEPA’s legislative history suggests

that Congress intended to give the President tariffmaking power. The House Report accompanying the

bill identified the key powers carried over from TWEA

that were deemed necessary for emergencies: controls

on foreign exchange transactions, banking transfers,

and securities; regulation of property in which foreign

nationals have an interest; vesting (seizing) foreignowned property; and handling or liquidating such

property for the United States’ benefit. See H.R. Rep.

No. 95-459, at 1–2. Notably absent from that list is

any power to raise import duties or impose new

tariffs. In fact, tariffs are only addressed in a

historical discussion of past uses of TWEA, not as a

contemplated feature of IEEPA. See id. at 5–6.

16

C.

The government’s contrary arguments

lack merit.

The slender thread on which the government

bases its reliance on IEEPA is that Congress used the

same the term, “regulate . . . imports,” in IEEPA that

had been present in the TWEA, and which Yoshida

held had supported Nixon’s tariff surcharges. The

government asks this court to infer that IEEPA has

the same meaning as the TWEA and that Congress

must have embraced the broad interpretation of that

language in Yoshida. There are multiple reasons to

reject that argument.

First, the Court should interpret IEEPA in light

of its language, and not according to speculation that

Congress might have accepted the interpretation

given by one court to a different statute, now

repealed. That is especially clear because we know

that Congress explicitly set out to cabin that

authority, and substitute authorities “which are both

more limited in scope than those of [TWEA] and

subject to various procedural limitations[.]” H.R. Rep.

No. 95-459, at 2. It would turn the congressional

intention on its head to read IEEPA as preserving the

same unbridled power that Nixon had asserted. As

the district court correctly observed, “the power to

regulate is not the power to tax.” Learning Res., Inc.

v. Trump, No. 25-1248, 2025 WL 1525376, at *8

(D.D.C. May 29, 2025).

Second, the Court should not read IEEPA as

giving the President sweeping tariff powers when

Congress had just enacted the Trade Act, which

subjected presidential tariff authority to strict

substantive and procedural limits. The government’s

interpretation would amount to an implied repeal of

17

the Trade Act and virtually every other tariff-specific

delegation of power. As Justice Frankfurter noted in

Youngstown, “It is quite impossible, however, when

Congress did specifically address itself to a problem,

as Congress did to that of seizure, to find secreted in

the interstices of legislation the very grant of power

which Congress consciously withheld.” 343 U.S. at

609 (Frankfurter, J., concurring).

Third, the Yoshida court expressly repudiated the

notion that the TWEA empowered the President to

“impos[e] whatever tariff rates he deems desirable,”

which is the power claimed by the government in this

case. Yoshida, 526 F.2d at 578. The court emphasized

the narrow and time-limited nature of the Nixon tariff

surcharge, and limited its holding accordingly. The

court noted that Nixon’s Executive Order “was limited

to articles which had been the subject of prior tariff

concessions” and that the total tariff, with the

surcharge, could not exceed the amount Congress had

enacted in “column 2 of the Tariff Schedules of the

United States[.]” Id. at 577. The surcharge lasted less

than five months. “Far from attempting, therefore, to

tear down or supplant the entire tariff scheme of

Congress, the President imposed a limited surcharge,

as ‘a temporary measure’ calculated to help meet a

particular national emergency[.]” Id. at 577–78

(internal citation omitted). Indeed, the court

suggested that such a broad interpretation might

render the statute unconstitutional. Id. at 580–83. To

make this point crystal clear, the court declared that

“[t]he declaration of a national emergency is not a

talisman enabling the President to rewrite the tariff

schedules[.]” Id. at 583. Thus, even if this court were

to conclude that Congress somehow incorporated the

Yoshida court’s interpretation of the TWEA into the

18

new IEEPA statute, this would not support the

government’s extravagant claim of an unlimited

power to set tariffs in any declared emergency.

The Yoshida court further emphasized, no fewer

than four times in its opinion, that the generalized

provisions of the TWEA could be read to authorize

President Nixon’s action only because there then

existed no statute containing “procedures prescribed

by the Congress for the accomplishment of the very

purpose sought to be attained by [the presidential

order].” Id. at 570, 578. A specific statute would

govern instead of the TWEA. Congress thus knew

that its enactment of precisely such procedures in the

Trade Act of 1974 would preclude a finding of

generalized tariff authority under the TWEA, under

the logic and holding of Yoshida.

The government simply ignores the congressional

opposition to the Nixonian tariffs, the enactment of

time-limited and procedurally limited tariff authority

in the Trade Act, and the elimination of unilateral

presidential emergency authority through the fasttrack congressional disapproval mechanism of the

Emergency Act. To be sure, the congressional

disapproval procedure was rendered ineffective by the

Chadha decision, but that decision came a decade

later, and it defies reason to impute to Congress the

intention to give to the President precisely the

unilateral authority it so carefully (if ineffectually)

curtailed.

D.

Emergencies—even if real—do not

change the analysis.

The government argues that the existence of an

emergency—which it says is a political question the

19

courts cannot review—permits tariff authority under

IEEPA. Under this logic, the President could invoke

unbridled tariff authority at will.

Adherence to the Constitution is not a choice. The

Founders deliberately vested taxing authority in the

legislative branch to ensure broad deliberation and

democratic legitimacy. Federalist No. 58 reminds us

that this arrangement was intentional, carefully

crafted to prevent the unilateral executive actions

this administration now seeks. As the Supreme Court

also emphasized, even procedures that are “efficient,

convenient,

and

useful”

cannot

override

constitutional

principles;

“[c]onvenience

and

efficiency are not the primary objectives—or the

hallmarks—of democratic government[.]” Chadha,

462 U.S. at 944. Simply put, IEEPA is not a shortcut

for a President who finds the standard legislative

process too cumbersome or slow.

Even assuming for the sake of argument that a

qualifying emergency exists, that does not change the

meaning or scope of IEEPA. Emergencies do not

generate new constitutional powers nor expand

authority explicitly withheld. The Constitution

remains binding even during emergencies. As Justice

Jackson warned, sweeping emergency powers with

“no beginning or . . . no end” and that “submit to no

legal restraint” are fundamentally incompatible with

our constitutional order. Youngstown, 343 U.S. at

653–54 (Jackson, J., concurring).

E.

These tariffs are permanent policy

rather than emergency measures.

IEEPA was enacted to enable short-term,

targeted responses to genuine, extraordinary threats.

20

It is not a tool for addressing long-standing policy

concerns or for implementing structural reforms that

require legislative debate.

The tariffs imposed by the President in April 2025

are plainly at odds with that purpose. They are not

tied to a discrete or time-sensitive emergency. Nor are

they temporary. On the contrary, they are designed to

remain in effect indefinitely and to respond to broad,

persistent conditions—such as global supply chain

realignment, foreign industrial policy, and chronic

trade imbalances—that the Administration claims

threaten American economic security in a general and

enduring way.

President Trump has made no effort to conceal

this long-term intent. He has explicitly defended his

tariff policy as a corrective to economic trends

spanning more than two decades. The official White

House Fact Sheet explains that the President invoked

IEEPA to address “the national emergency posed by

the large and persistent trade deficit.” It claims that

“[f]or generations, countries have taken advantage of

the United States,” and cites the loss of “around 5

million manufacturing jobs” from 1997 to 2024—a 27year period.4 It also references Chinese trade

practices “[b]etween 2001 and 2018”—conduct that

began nearly a quarter century ago and concluded

seven years prior. Id. These are longstanding policy

4 See Fact Sheet: President Donald J. Trump Declares National

Emergency to Increase Our Competitive Edge, Protect Our

Sovereignty, and Strengthen Our National and Economic

Security,

The

White

House

(Apr.

2,

2025),

https://www.whitehouse.gov/fact-sheets/2025/04/fact-sheetpresident-donald-j-trump-declares-national-emergency-toincrease-our-competitive-edge-protect-our-sovereignty-andstrengthen-our-national-and-economic-security/.

21

grievances, best addressed by Congress—not by

emergency proclamation.

The Administration has also touted these tariffs

as a means of generating long-term revenue. On April

2, President Trump predicted that the tariffs would

generate “trillions and trillions of dollars to reduce

our taxes and pay down our national debt.” The Chair

of the Council of Economic Advisors echoed this aim,

stating that “tariffs will help pay for both tax cuts and

deficit reduction.”5 But tax cuts and budget deficits—

however

important—are

not

“unusual

and

extraordinary threat[s]” under IEEPA. 50 U.S.C. §

1701(a). They are routine subjects of political debate

and legislative negotiation, not unilateral executive

action.

F.

No President has ever used IEEPA this

way.

This Court has cautioned that “[w]hen an agency

claims to discover in a long-extant statute an

unheralded power to regulate ‘a significant portion of

the American economy,’ . . . we typically greet its

announcement with a measure of skepticism.” Util.

Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)

(quoting FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 159 (2000)). That skepticism is

warranted here. In the nearly five decades since

IEEPA’s enactment, “no President until now has ever

invoked the statute—or its predecessor, TWEA—to

impose tariffs.” Learning Res., 2025 WL 1525376, at

5 CEA Chairman Steve Miran, Hudson Institute Event Remarks,

The

White

House

(Apr.

7,

2025),

https://www.whitehouse.gov/briefings-statements/2025/04/ceachairman-steve-miran-hudson-institute-event-remarks/.

22

*10. That settled practice confirms what the statute’s

text and legislative record already show: Congress did

not grant tariff authority.

G.

This Court rejects Executive Branch

efforts to arrogate to itself sweeping

power absent clear text.

In matters of vast political and economic

consequence, this Court insists on unmistakable

legislative authority before allowing the Executive

Branch to act. The reason is straightforward: it is

improbable (and constitutionally dubious to assume)

that Congress would intend to transfer vast swaths of

its constitutional power without saying so directly.

That principle applies with full force here. The

President has proclaimed a fundamental reordering

of U.S. trade policy without new legislation or specific

congressional approval. The asserted authority rests

on statutory language not enacted for this purpose

and never before used in this way. That, under

binding precedent, is not enough.

The Court applied this principle decades ago in

Brown & Williamson. There, it rejected the FDA’s

attempt to regulate tobacco under broad statutory

language, noting that Congress had legislated

extensively in the area without granting that power.

“Congress could not have intended to delegate a

decision of such economic and political significance...

in so cryptic a fashion.” 529 U.S. at 160. The Court

refused to assume that Congress had granted

sweeping authority without saying so. As the Court

warned, Congress does not “hide elephants in

mouseholes.” Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 468 (2001).

23

In Alabama Association of Realtors v. DHHS, 594

U.S. 758 (2021), the Court struck down the CDC’s

attempt to extend a nationwide eviction moratorium

under general public health authority. The relevant

statute allowed measures to prevent disease

transmission, but none of the enumerated measures

bore any resemblance to moratorium on evictions.

That mattered. The Court emphasized that sweeping

economic actions require unmistakable legislative

approval—particularly

where

Congress

had

considered and declined to extend the policy itself.

The CDC’s reliance on broad language was not

enough.

Similarly, National Federation of Independent

Business v. DOL, 595 U.S. 109 (2022), invalidated

OSHA’s nationwide vaccine-or-test mandate, holding

that such a significant policy required explicit

congressional authorization. Though OSHA invoked

its general authority to regulate workplace safety, the

Court found that such sweeping measures could not

rest on generalized statutory terms. The Executive

may not transform a broad statute into a blank check

for nationwide regulation—particularly when

fundamental personal and economic rights are at

stake.

The situation here is analogous to these cases.

Like the CDC, the President relies on a few

generalized words (“regulate” and “importation”) in a

statute designed for narrow, targeted emergencies to

justify a dramatic, long-term economic intervention.

And as in Alabama Association, Congress has not

merely failed to speak clearly—it has expressly

declined to authorize the action now claimed. Cf.

Youngstown, 343 U.S. at 586 (noting that Congress

24

had considered and declined to grant the President

authority to seize private property in response to

labor disputes). When faced with Richard Nixon’s

unprecedented assertion of a unilateral tariff power

under the TWEA, Congress repealed the TWEA and

replaced it with the Trade Act, which allowed

adjustment of tariffs under strict procedural,

substantive, and temporal limitations, enacted

IEEPA to address non-tariff economic sanctions, and

subjected all emergency declarations to direct

congressional control. That history cannot be

rewritten by implication or executive interpretation.

Interpreting IEEPA to authorize tariffs would

also invite a grave nondelegation problem. The

statute supplies no intelligible principle to guide the

President in determining when, how, or to what

extent duties should be imposed If construed to allow

the imposition of tariffs without meaningful limits or

standards, IEEPA would amount to an open-ended

delegation of legislative power—precisely what the

nondelegation doctrine forbids. In J.W. Hampton, Jr.,

& Co. v. United States, 276 U.S. 394, 409 (1928), the

Court upheld a tariff delegation only because it was

governed by an “intelligible principle” and confined to

narrow bounds. As the Court explained in Whitman,

Congress must “lay down by legislative act an

intelligible principle to which the person or body

authorized to [act] is directed to conform.” 531 U.S. at

472 (citation omitted). That principle is absent here

with respect to trade duties.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

25

DANIEL W. WOLFF

Counsel of Record

CROWELL & MORING LLP

1001 Pennsylvania Avenue, NW

Washington, DC 20004

(202) 624-2500

dwolff@crowell.com

APPENDIX

TABLE OF CONTENTS

APPENDIX: LIST OF AMICI CURIAE…………..1a

APPENDIX

LIST OF AMICI CURIAE

The following amici join this brief in their individual

capacities. They do not represent any party to this

matter. Institutional affiliations are provided for

identification only and do not reflect the views or

endorsements of their employers.

George F. Allen served as Governor of Virginia from

1994 to 1998 and as a United States Senator from

2001 to 2007. Earlier in his career, he represented

Virginia in the U.S. House of Representatives and

served in the Virginia House of Delegates.

Joshua A. Claybourn is an attorney who advises

public-sector clients—including legislative bodies—

on constitutional and administrative law. His legal

and historical scholarship focuses on the separation of

powers and the constitutional legacy of the early

Republic and Abraham Lincoln.

John C. Danforth served as a United States Senator

from Missouri and as U.S. Ambassador to the United

Nations. Prior to his Senate tenure, he was Attorney

General of Missouri for eight years. He currently

serves on the national advisory board of the John C.

Danforth Center on Religion and Politics at

Washington University.

Richard A. Epstein is the Laurence A. Tisch

Professor of Law at New York University School of

Law, the Peter and Kirsten Bedford Senior Fellow at

the Hoover Institution at Stanford University, and

the James Parker Hall Distinguished Service

2a

Professor Emeritus and Senior Lecturer at the

University of Chicago Law School.

Charles T. Hagel represented Nebraska in the

United States Senate from 1997 to 2009, where he

served on the Foreign Relations and Intelligence

Committees. He served as the 24th United States

Secretary of Defense from 2013 to 2015 and as cochairman of the President’s Intelligence Advisory

Board from 2009 to 2013.

Harold Hongju Koh is Sterling Professor of

International Law and former Dean at Yale Law

School. From 2009 to 2013, he served as Legal Adviser

to the United States Department of State, and from

1998-2001, he served as Assistant Secretary of State

for Democracy, Human Rights and Labor.

Gerard N. Magliocca is a Distinguished Professor

and the Lawrence A. Jegen III Professor at the

Indiana University Robert H. McKinney School of

Law. A leading scholar of constitutional law and

constitutional history, he is the author of five books

and dozens of articles exploring the evolution of

American constitutional thought, with a focus on the

Founding era and Reconstruction.

Michael B. Mukasey was Attorney General of the

United States from 2007 to 2009. Earlier, he sat on

the U.S. District Court for the Southern District of

New York from 1988 to 2006, serving the last six

years as Chief Judge. Before joining the bench, he

tried complex cases as an Assistant U.S. Attorney in

that district and later handled commercial litigation

in private practice. Today he advises clients and

3a

speaks and writes

constitutional law.

on

national-security

and

Alan O. Sykes is a Professor at Stanford Law School,

where he serves as Director of the LL.M. Program in

International Economic Law, Business and Policy. He

is also a Senior Fellow at the Stanford Institute for

Economic Policy Research. He is co-author of Legal

Problems of International Economic Relations (7th

ed. 2021), a leading casebook in the field.

Judge John Daniel Tinder (Ret.) served as a judge

on the United States Court of Appeals for the Seventh

Circuit from 2007 to 2015, and on the United States

District Court for the Southern District of Indiana

from 1987 to 2007. Prior to his judicial service, he was

the United States Attorney for the Southern District

of Indiana from 1984 to 1987.

Alexander “Sasha” Volokh is professor of law at

Emory University School of Law. He teaches, writes,

and blogs about constitutional law, administrative

law, and related legal issues, and he has an interest

in the sound development of these fields.

Peter J. Wallison is a Senior Fellow Emeritus at the

American Enterprise Institute. He previously served

as General Counsel of the U.S. Department of the

Treasury and as White House Counsel to President

Ronald Reagan.

Philip Zelikow is the Botha-Chan Senior Fellow at

Stanford University’s Hoover Institution and

formerly held a chaired professorship in history at the

University of Virginia, where he directed the nation’s

foremost center for the study of the presidency. He

4a

served as Counselor of the U.S. Department of State

under President George W. Bush, was a member of

the National Security Council staff during the George

H.W. Bush administration, and directed the 9/11

Commission. He also served on the President’s

Intelligence Advisory Board under both Presidents

George W. Bush and Barack Obama.