Amicus Curiae Brief — Learning Resources, Inc., et al., Petitioners v. Donald J. Trump, President of the United States, et al.
Supreme Court briefSep 23, 2025
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Nos. 24-1287 & 25-250
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., Respondents.
_____________________________
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,
ET AL., Petitioners,
v.
V.O.S. SELECTIONS, INC., ET AL., Respondents.
_____________________________
On Writ of Certiorari Before Judgment to the United
States Court of Appeals for the District of Columbia
Circuit and on Writ of Certiorari to the United States
Court of Appeals for the Federal Circuit
_____________________________
BRIEF OF PROFESSOR CHAD SQUITIERI
AS AMICUS CURIAE IN SUPPORT OF
RESPONDENTS IN NO. 24-1287 AND
PETITIONERS IN NO. 25-250
_____________________________
R. TRENT MCCOTTER
Counsel of Record
SEPARATION OF POWERS CLINIC
COLUMBUS SCHOOL OF LAW
THE CATHOLIC UNIVERSITY OF
AMERICA
3600 John McCormack Rd. NE
Washington, DC 20064
(202) 706-5488
mccotter@cua.edu
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF THE AMICUS CURIAE................... 1
SUMMARY OF THE ARGUMENT ........................... 2
ARGUMENT .............................................................. 6
I.
Tariffs are a Traditional and Well-Known
Means of Regulating Commerce ......................... 6
A. Originalist Evidence....................................... 6
B. Supreme Court Precedent .............................. 9
II. Both Lower Courts Erroneously Concluded
that Tariffs Must be an Exercise of Taxation
Power.................................................................. 10
A. The District Court ........................................ 10
B. The Federal Circuit ...................................... 13
C. Certiorari-Stage Briefing ............................. 17
III. The Ordinary Meaning of IEEPA Delegates
Traditional Tariff Authority.............................. 18
A. Congress Need Not Use Magic Words ......... 19
B. Surrounding Terminology in IEEPA
Confirms a Delegation of Tariff Authority .. 20
C. The President Need Not Rely on NonEmergency
Statutes
During
an
Emergency .................................................... 21
D. Congress Need Not Delegate Taxation
Authority to Delegate Tariff Authority ....... 22
E. Other Statutory References to “Regulate”
Are Distinct .................................................. 24
ii
F. Commerce-Regulating Tariffs May Raise
Revenue ........................................................ 25
IV. IEEPA’s
Delegation
Satisfies
the
Nondelegation
and
Major
Questions
Doctrines ............................................................ 28
A. The Constitution’s Nondelegation Principle
Applies Less Stringently in the Foreign
Affairs Context ............................................. 28
B. IEEPA
Satisfies
the
Domestic
Nondelegation Doctrine ............................... 31
C. IEEPA Satisfies the Major Questions
Doctrine ........................................................ 33
CONCLUSION ......................................................... 36
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Biden v. Nebraska,
600 U.S. 477 (2023) ........................................ 13, 33
Bd. of Trs. of Univ. of Ill. v. United
States, 289 U.S. 48 (1933) .................................... 10
Cargo of the Brig Aurora,
11 U.S. 382 (1813) ................................................ 29
FCC v. Consumers’ Rsch.,
145 S. Ct. 2482 (2025) .......................... 4, 29, 32–33
Gibbons v. Ogden,
22 U.S. (9 Wheat) 1 (1824)..................... 7, 9, 11, 14
Gonzales v. Raich,
545 U.S. 1 (2005) .................................................. 26
Gundy v. United States,
588 U.S. 128 (2019) ........................................ 29, 34
Learning Res., Inc. v. Trump,
No. 1:25-cv-1248, 2025 WL 1525376
(D.D.C. May 29, 2025)........................ 10–13, 18, 21
McGoldrick v. Gulf Oil Corp.,
309 U.S. 414 (1940) .............................................. 10
United States v. Curtiss-Wright Export
Corp., 299 U.S. 304 (1936) ................................... 28
United States v. Yoshida Int’l, Inc.,
526 F.2d 560 (C.C.P.A. 1975)........................... 5, 34
iv
V.O.S. Selections, Inc. v. Trump,
Nos. 2025-1812 & 2025-1813, 2025
WL 2490634 (Fed. Cir. Aug. 29,
2025) ....................................... 13–16, 18, 21, 23–24
West Virginia v. EPA,
597 U.S. 697 (2022) .............................................. 35
Statutes
50 U.S.C. § 1622(a) .................................................... 31
50 U.S.C. § 1622(d) .................................................... 31
50 U.S.C. § 1701(b) ........................ 5, 12, 21–22, 31–32
50 U.S.C. § 1702(a) .................. 2, 15, 17, 20, 24, 31, 35
50 U.S.C. § 1702(b) .............................................. 20, 31
Other Authorities
Amy Coney Barrett, Congressional
Insiders and Outsiders, 84 U. Chi. L.
Rev. 2193 (2017) ................................................... 18
Chad Squitieri, Conflating Taxes with
Tariffs: Clear Error in the Federal
Circuit’s Tariff Opinion, Yale J.
Regul. Notice & Comment Blog
(Sept. 2, 2025),
https://www.yalejreg.com/nc/
conflating-taxes-with-tariffs-clearerror-in-the-federal-circuits-tariffopinion-by-chad-squitieri/ .................................... 13
Chad Squitieri, The President’s
Authority to Impose Tariffs,
2025 Harv. J.L. & Pub. Pol’y ............... 7–10, 28–31
v
Chad Squitieri, Towards Nondelegation
Doctrines, 86 Mo. L. Rev. 1239 (2022) ................. 30
Exec. Order No. 14,193,
90 Fed. Reg. 9,113 (Feb. 7, 2025) ........................ 25
Exec. Order No. 14,194,
90 Fed. Reg. 9,117 (Feb. 7, 2025) ........................ 25
Exec. Order No. 14,195,
90 Fed. Reg. 9,121 (Feb. 7, 2025) ........................ 25
Exec. Order No. 14,257,
90 Fed. Reg. 15,041 (Apr. 7, 2025) ...................... 26
Jack Goldsmith, The Tariff Case and
the Major Questions Doctrine, Exec.
Functions (Sept. 12, 2024),
https://executivefunctions.
substack.com/p/the-tariff-case-andthe-major-questions ............................................. 34
Jack Goldsmith, The Weaknesses in the
Trump Tariff Rulings, Exec.
Functions (May 30, 2025),
https://executivefunctions.substack.c
om/p/the-weaknesses-in-the-trumptariff ................................................................ 12, 22
2 Joseph Story, Commentaries on the
Constitution (1833) ................................................ 9
Letter from James Madison to Joseph C.
Cabell (Sept. 18, 1828), in 9 The
Writings of James Madison (Gaillard
Hunt ed., 1910)....................................... 7–9, 11, 26
vi
Michael W. McConnell, The President
Who Would Not Be King (2020) ..................... 30–31
Norah O’Donnell, How Ford and GM
Joined the Fight Against the
Coronavirus, CBS News (Apr. 27,
2020), https://www.cbsnews.com/
news/ford-general-motorscoronavirus-ventilators-medicalsupplies/ ................................................................ 27
Robert G. Natelson, What the
Constitution Means by “Duties,
Imposts, and Excises”—and “Taxes”
(Direct or Otherwise), Case W. Rsrv.
L. Rev. 297 (2015) ................ 6, 9, 17, 20–21, 25–26
3 William Blackstone, Commentaries
(1769) .................................................................... 32
1
INTEREST OF AMICUS CURIAE1
Amicus Curiae Chad Squitieri is an Assistant
Professor of Law at Catholic University of America’s
Columbus School of Law, where he serves as Director
of the Separation of Powers Institute and as a
Managing Director of the Center for the Constitution
and the Catholic Intellectual Tradition.2 His
scholarship focuses on separation-of-powers topics,
including the major questions doctrine and the
nondelegation doctrine. His essay, The President’s
Authority to Impose Tariffs, 2025 Harv. J.L. & Pub.
Pol’y Per Curiam, No. 12, forms a foundation for this
brief.
He has a strong interest in the sound
development of separation-of-powers jurisprudence.
1
No counsel for any party has authored this brief in whole or in
part, and no entity or person other than amicus curiae and his
counsel made any monetary contribution intended to fund the
preparation or submission of this brief.
2
Professor Squitieri serves as an amicus in his personal capacity.
His institutional affiliation is offered for identification purposes.
2
SUMMARY OF THE ARGUMENT
In these consolidated cases, both lower courts
concluded that tariffs must be an exercise of taxation
power. Those courts were mistaken. Overwhelming
originalist evidence establishes that tariffs can be an
exercise of either taxation or commerce-regulation
power. Congress need not delegate taxation power to
delegate tariff power. Congress can instead delegate
tariff power by delegating commerce-regulation
power.
Fundamental and dispositive problems flow from
the lower courts’ error—including problems relating
to elucidating the ordinary meaning of the
International Emergency Economic Powers Act
(IEEPA) and applying the nondelegation and major
questions doctrines. This Court should rule that, by
empowering the President to “regulate …
importation,” 50 U.S.C. § 1702(a)(1)(B), IEEPA
empowers the President to use a traditional and
familiar means of regulating foreign commerce
conducted via importation: tariffs.
Since the Founding, it has been understood that
tariffs can be imposed as an exercise of commerceregulation power. That understanding is reflected in
the writings of James Madison, Chief Justice John
Marshall, Joseph Story, and ordinary Americans such
as the revolutionary pamphleteers. It is also the
understanding reflected in the Tariff Act of 1789—
signed by George Washington—and this Court’s
precedents. Neither the United States District Court
for the District of Columbia nor the United States
Court of Appeals for the Federal Circuit offered any
3
justification for rejecting the well-established
understanding of tariffs’ constitutional source. To the
contrary, both courts seemed unaware that, for over
two hundred years, tariffs have been understood as a
constitutional means of exercising the power to
regulate commerce.
The District Court’s and Federal Circuit’s
mistaken conclusion infected key aspects of those
courts’ interpretations of IEEPA.
For example,
because both courts reasoned that tariffs must be a
tax, both courts suggested that Congress must use a
special statutory term like “tax” to delegate tariff
authority. But it is nonsensical to require Congress to
use a magic word relating to the taxation power to
delegate tariff authority flowing from Congress’s
distinct power to regulate commerce.
It was similarly misguided for the lower courts to
reason that Congress could delegate tariff authority
only by using other magic words, such as “tariff” and
“duties.” To be sure, Congress could use those terms
to delegate tariff authority flowing from Congress’s
power to regulate commerce. At the Founding, tariffs
were a well-known means of regulating commerce,
and duties could be imposed either for taxation or
commerce-regulation purposes. But just because
Congress could use those terms does not mean that
Congress must use those terms.
The ordinary
meaning of the phrase “regulate … importation”
encompasses the power to regulate importation
through traditional and familiar means (e.g., tariffs).
And there are weighty reasons for courts not to
unnecessarily insert themselves into the messy and
dangerous world of international relations by reading
4
a traditional and familiar means of regulating foreign
commerce out of an emergency statute.
Conflating tariffs with taxation also leads to
flawed applications of the nondelegation and major
questions doctrines.
The Federal Circuit’s
nondelegation analysis, for example, focused on
Congress’s power to tax. But IEEPA need not delegate
taxation power to delegate tariff power; IEEPA can
instead delegate tariff power by delegating power to
regulate foreign commerce.
And this Court’s
precedents, as well as an originalist understanding of
the separation of powers, make clear that the
nondelegation principle applies less stringently in the
foreign affairs context.
Even putting the foreign affairs context to the side,
IEEPA’s delegation of tariff authority satisfies the
domestic nondelegation doctrine.
In FCC v.
Consumers’ Research, 145 S. Ct. 2482 (2025), this
Court ruled that a broad delegation of domestic
taxation or commerce-regulation authority did not
violate the intelligible principle test. The delegation
in Consumers’ Research was not curtailed by any
numerical limit—the rate of the tax (or fee) was left
entirely to the executive branch, so long as the rate
was “sufficient” to “support” a government program.
IEEPA places more serious limitations on the
President’s delegated tariff authority. To wit, IEEPA
limits who can impose tariffs (the President), what the
President can impose tariffs on (specific categories of
foreign property), when the President can impose
tariffs (after a declared emergency), the time-length
tariffs can last without reauthorization (one year
unless sooner terminated by Congress), and the scope
5
and magnitude of the tariffs—which is limited by the
statutory requirement that the tariffs be used only to
“deal with” specific emergency threats that have
specific scopes, 50 U.S.C. § 1701(b).
As to the major questions doctrine: this Court has
never applied it in the foreign policy and national
security settings. And regardless of whether one
understands the doctrine as a linguistic or
substantive canon, the logical underpinnings of the
doctrine counsel against expanding it to those
settings. It is also mistaken to apply the doctrine in
these consolidated cases because the President has
not claimed “unheralded” tariff authority. Nearly fifty
years ago, the statutory phrase “regulate …
importation” was judicially recognized as delegating
tariff authority to the President. United States v.
Yoshida Int’l, Inc., 526 F.2d 560, 576 (C.C.P.A. 1975)
(Yoshida II). Although the tariffs at issue in that case
can be distinguished on policy grounds from the
challenged tariffs in this case (e.g., different tariff
rates) nothing in IEEPA suggests those policy
distinctions are legally relevant. So long as IEEPA
tariffs satisfy IEEPA’s requirements, the relevant
emergency-policy decisions are for the President to
make—not the courts.
In sum, serious and dispositive errors flow from
the District Court’s and the Federal Circuit’s
erroneous conclusion that tariffs must be an exercise
of taxation power. This Court should reverse (No. 25250) and remand for dismissal (No. 24-1287).
6
ARGUMENT
I.
Tariffs are a Traditional and Well-Known
Means of Regulating Commerce.
A.
Originalist Evidence
The historical record is overwhelming: Tariffs have
long been understood as an exercise of commerceregulation power.
Start with the revolutionary pamphleteers.
Although those “pamphleteers staunchly contested
efforts by Parliament to ‘tax’ them,” they “conceded
the authority of the British government to regulate
commerce though financial exactions—by, for
example, … imposing prohibitory tariffs to restrict
trade.” Robert G. Natelson, What the Constitution
Means by “Duties, Imposts, and Excises”—and “Taxes”
(Direct or Otherwise), Case W. Rsrv. L. Rev. 297, 306
(2015) (emphases added) (citations omitted). The
pamphleteers “defined ‘tax’” as “a financial imposition
for the sole purpose of raising revenue.” Id. (citation
omitted). “By the time of the constitutional debates of
1787–90 … Americans no longer claimed that a tax
must be for the sole purpose of raising revenue.” Id.
at 307. Instead, “during the constitutional debates
Americans considered exactions adopted primarily for
regulatory purposes to be fundamentally different
from taxes, which were enacted primarily for
revenue.” Id.
Chief Justice Marshall offers additional insight
into the Founding-era understanding of tariffs. As he
explained in Gibbons v. Ogden, “[t]he right to regulate
commerce … by the imposition of duties[] was not
7
controverted” by the “illustrious statesmen and
patriots” of the Founding era, 22 U.S. (9 Wheat) 1, 202
(1824) (emphasis added). For modern originalists who
seek to interpret the Constitution pursuant to its
original public meaning, historical evidence
concerning the views of ordinary Americans is of
significant relevance.
Here there is an
embarrassment of riches: the historical record
includes the views of revolutionary pamphleteers and
a clear statement from Chief Justice Marshall
concerning the views of Founding-era “statesmen and
patriots.” Id.
James Madison also wrote on this issue. In 1828,
Madison reflected on “the first session of the first
Congress,” which had “made” “use” of “the power[] to
regulate trade” to “encourage[] … Manufacture[r]s.”
Letter from James Madison to Joseph C. Cabell (Sept.
18, 1828), in 9 The Writings of James Madison
(Gaillard Hunt ed., 1910) (“Madison 1828 Letter”).3
“To wit, the Tariff Act of 1789”—signed by George
Washington—“was enacted both ‘for the support of
government’ (i.e., revenue raising) and for ‘the
encouragement and protection of manufacture[r]s’
(i.e., commerce regulation).” Chad Squitieri, The
President’s Authority to Impose Tariffs, 2025 Harv.
J.L. & Pub. Pol’y Per Curiam, No. 12, at 1, 3 (quoting
An Act for Laying a Duty on Goods, Wares, and
Merchandises Imported into the United States, ch. 2,
§ 1, 1 Stat. 24 (1789)). The Tariff Act of 1789 sought
3
Available at https://oll-resources.s3.us-east-2.amazonaws.com/
oll3/store/titles/1940/Madison_1356-09_EBk_v6.0.pdf
(pages
198–204).
8
to protect domestic industry by placing duties on
various goods. Id. And “[r]eflecting in 1828 on forty
years of similar and unquestioned practice, Madison
thought there was more than sufficient ‘evidence in
support of the Cons[tituional] power to protect [and]
foster manufactures by regulations of trade.’” Id. at
3–4 (quoting Madison 1828 Letter). Indeed, the
question was “settle[d]” by “the uniform & practical
sanction given to the power, by the Gen[eral]
Gov[ernment] for nearly 40 years with a concurrence
or acquiescence of every State Gov[ernment]
throughout the same period.” Madison 1828 Letter.
Madison also discussed the overlapping nature of
Congress’s taxation and commerce-regulation powers.
“[I]n his 1828 letter concerning ‘the constitutionality
of the power in Cong. to impose a tariff for the
encourag[e]m[en]t[] of Manufactures,’ Madison
pointed to both the Taxation Clause and the
Commerce Clause as sources of authority.” Squitieri,
The President’s Authority to Impose Tariffs, supra, at
5 (quoting Madison 1828 Letter). Madison “did not
think it problematic that the two clauses gave
Congress overlapping authority.” Id. Instead, he
noted that “examples of overlapping powers could be
seen ‘elsewhere in the Constitution’ as well.” Id.
(quoting Madison 1828 Letter). For Madison, those
“[p]leonasms, tautologies [and] the promiscuous use of
terms [and] phrases” were to “be ascribed sometimes
to the purpose of greater caution; sometimes to the
imperfections of language; [and] sometimes to the
imperfection of man himself.” Madison 1828 Letter.
Madison thus thought it “quite natural, however
certainly the general power to regulate trade might
9
include a power to impose duties on [trade], not to
omit [the power to impose duties] in a clause
enumerating the several modes of revenue authorized
by the Constitution.” Id.
Joseph Story’s Commentaries on the Constitution
offer similar insight. Story’s Commentaries posed a
question: “Why does the power” to “regulate commerce
… involve the right to lay duties?” 2 Joseph Story,
Commentaries on the Constitution § 1084 (1833). The
answer was straightforward: “Simply, because [laying
duties] is a common means of executing the power [to
regulate commerce].” Id. To be sure, raising “revenue
is an incident to such an exercise of the power.” Id.
And so “the mere fact that a tariff raises revenue does
not in and of itself require an exercise of taxation
power.” Squitieri, The President’s Authority to Impose
Tariffs, supra, at 4; see also Natelson, supra, at 307.
As Story wrote, “revenue ‘flows from, and does not
create the power’ to regulate commerce.” Squitieri,
The President’s Authority to Impose Tariffs, supra, at
4 (quoting 2 Story, Commentaries, supra, § 1084).
B.
Supreme Court Precedent
Given the historical record, it is unsurprising that
this Court’s precedents similarly indicate that tariffs
may be imposed as a means of regulating commerce.
Most prominently, and as mentioned, Chief Justice
Marshall explained in Gibbons v. Ogden that “[t]he
right to regulate commerce … by the imposition of
duties … was not controverted” by the “illustrious
statesmen and patriots” at the Founding. 22 U.S. (9
Wheat) at 202 (emphasis added).
10
In Board of Trustees of University of Illinois v.
United States, this Court recognized that although
“the taxing power is a distinct power and embraces
the power to lay duties, it does not follow that duties
may not be imposed in the exercise of the power to
regulate commerce,” 289 U.S. 48, 58 (1933). Instead,
“[t]he contrary is well established.” Id. (citing
Gibbons, 22 U.S. (9 Wheat) at 202). “The laying of
duties is ‘a common means of executing the power’” of
regulating commerce, and “[i]t has not been
questioned that this power may be exerted by laying
duties ‘to countervail the regulations and restrictions
of foreign nations.’”
Id. (quoting 2 Story,
Commentaries, supra, §§ 1083–84).
Similarly, in McGoldrick v. Gulf Oil Corp., this
Court explained that although “[t]he laying of a duty
on imports” can be “an exercise of the taxing power,”
it “is also an exercise of the power to regulate foreign
commerce,” 309 U.S. 414, 428 (1940).
Thus,
“[c]ustoms regulations” concerning “imports” “are not
only necessary or appropriate to protect the revenue,
but are means to … the regulation of foreign
commerce ….” Id.
II.
Both
Lower
Courts
Erroneously
Concluded that Tariffs Must be an
Exercise of Taxation Power.
A.
The District Court
In Learning Resources, Inc. v. Trump, the United
States District Court for the District of Columbia
erroneously concluded that tariffs must be an exercise
of taxation power, No. 1:25-cv-1248, 2025 WL 1525376
(D.D.C. May 29, 2025).
11
The District Court began by reasoning that,
because
“[t]he
Constitution
recognizes
and
perpetuates th[e] distinction” between “the power to
regulate” and “the power to tax,” it followed that “[i]f
imposing tariffs and duties were part of the power ‘[t]o
regulate [c]ommerce with foreign [n]ations,’ then [the
Taxation Clause] would have no independent effect.”
Id. at *8. In reasoning as much, the District Court did
not seem aware that James Madison had come to the
opposite conclusion.
See Madison 1828 Letter
(discussing overlapping powers). The District Court
did cite Chief Justice Marshall’s statement in Gibbons
that “the power to regulate commerce is … entirely
distinct from the right to levy taxes and imposts.”
Learning Resources, 2025 WL 1525376, at *8 (quoting
Gibbons, 22 U.S. (9 Wheat.) at 201). But the District
Court seemed unaware that, in the very same opinion,
Chief Justice Marshall recognized duties as a
traditional means of regulating commerce.
See
Gibbons, 22 U.S. (9 Wheat.) at 202.
Having concluded that tariffs must be an exercise
of taxation power, the District Court thought it
relevant that “IEEPA does not use the words ‘tariffs’
or ‘duties,’ their synonyms, or any other similar terms
like ‘customs,’ ‘taxes,’ or ‘imposts.’”
Learning
Resources, 2025 WL 1525376, at *8. The District
Court also referred to dictionary definitions: “To
regulate something is to ‘[c]ontrol by rule’ or ‘subject
to restrictions,’” id. (quoting Regulate, The Concise
Oxford Dictionary of Current English 943 (6th ed.
1976)), while “[t]ariffs are, by contrast, schedules of
‘duties or customs imposed by a government on
imports or exports,’” id. (quoting Tariff, Random
12
House Dictionary of the English Language 1454
(1973)).4 The District Court then summarized those
dictionary definitions: “To regulate is to establish
rules governing conduct; to tariff is to raise revenue
through taxes on imports or exports.” Id. (emphasis
added). The District Court did not explain why, when
summarizing the definition for “tariff,” it inserted a
reference to “rais[ing] revenue” when the dictionary
definition relied on by the District Court did not
similarly limit tariffs to the revenue-raising context.
See id.
The District Court also noted that other tariff
statutes “established express procedural, substantive,
and temporal limits on” tariff authority, and thus
explained that the court would “not assume that, in
enacting IEEPA, Congress repealed by implication
every extant limitation on the President’s tariffing
authority.” Id. at *9. In reasoning as much, the
District Court did not suggest that other tariff
statutes were limited (like IEEPA) to “unusual and
extraordinary threat[s].” 50 U.S.C. § 1701(b). Nor did
the District Court address why a statute limited to
4
These definitions from the 1970s indicate that, when IEEPA
was enacted in 1977, the Founding-era understanding of tariffs
as a means of regulation had not been meaningfully disturbed.
See also Jack Goldsmith, The Weaknesses in the Trump Tariff
Rulings,
Exec.
Functions
(May
30,
2025),
https://executivefunctions.substack.com/p/the-weaknesses-inthe-trump-tariff (finding the District Court’s use of the
dictionary terms “unpersuasive, since a schedule of government
duties on imports is a form of government control over imports
by rule or an example of the government subjecting imports to
restrictions”).
13
unusual and extraordinary situations should be read
to include the same limitations imposed by statutes
addressing merely usual and ordinary situations.
The District Court also referenced the major
questions doctrine. Citing Biden v. Nebraska, 600
U.S. 477 (2023), the court reasoned that “[i]f Congress
had intended to delegate to the President the power of
taxing ordinary commerce from any country at any
rate for virtually any reason, it would have had to say
so.” Learning Resources, 2025 WL 1525376, at *8
(emphasis added). After concluding that “[t]he plain
meaning of ‘regulate’ is not ‘to tax,’” the District Court
explained it need not address “the nondelegation
doctrine.” Id. at *13.
B.
The Federal Circuit
In V.O.S. Selections, Inc. v. Trump, Nos. 20251812 & 2025-1813, 2025 WL 2490634 (Fed. Cir. Aug.
29, 2025), the United States Court of Appeals for the
Federal Circuit began its statutory analysis with “the
mistaken premise that tariffs must be a means of
taxation.” Chad Squitieri, Conflating Taxes with
Tariffs: Clear Error in the Federal Circuit’s Tariff
Opinion, Yale J. Regul. Notice & Comment Blog (Sept.
2, 2025), https://www.yalejreg.com/nc/conflatingtaxes-with-tariffs-clear-error-in-the-federal-circuitstariff-opinion-by-chad-squitieri/. To wit, the Federal
Circuit began the portion of its opinion “discuss[ing]
the history and legal authority concerning the
imposition of tariffs” by stating:
The Constitution grants Congress the power to
‘lay and collect Taxes, Duties, Imposts and
Excises’ and to ‘regulate Commerce with
14
foreign Nations.’ U.S. Const. art. I, § 8, cl. 1, 3.
Tariffs are a tax, and the Framers of the
Constitution expressly contemplated the
exclusive grant of taxing power to the
legislative branch ….
V.O.S. Selections, 2025 WL 2490634, at *4 (emphases
added).
Having started with the mistaken conclusion that
tariffs must be a means of taxation, the Federal
Circuit thought it “[n]otabl[e]” that “IEEPA does not
use the words ‘tariffs’ or ‘duties,’ nor any similar terms
like ‘customs,’ ‘taxes,’ or ‘imposts.’” Id. at *7. The
Federal Circuit also reasoned that “the mere
authorization to ‘regulate’ does not in and of itself
imply the authority to impose tariffs,” given that
“[t]he power to ‘regulate’ has long been understood to
be distinct from the power to ‘tax.’” Id. at *12. The
Federal Circuit observed that “the Constitution vests
these authorities in Congress separately,” and cited
the portion of Gibbons noting that taxation and
commerce-regulation are separately vested.
Id.
(citing Gibbons, 22 U.S. (9 Wheat) at 201). Like the
District Court in Learning Resources, the Federal
Circuit majority seemed unaware that Gibbons
elsewhere made clear that duties were a traditional
means of regulating commerce. See Gibbons, 22 U.S.
(9 Wheat.) at 202.
To be sure, the Federal Circuit did note that
“Congress may use its taxing power in a manner that
has a regulatory effect.” V.O.S. Selections, 2025 WL
2490634, at *12 (citation omitted). But the Federal
Circuit thought that immaterial because “the power
15
to tax is not always incident to the power to regulate.”
Id. at *12. In stating as much, the Federal Circuit
further demonstrated that it mistakenly believed
IEEPA’s reference to “regulate” would have to
delegate taxation power to delegate tariff power.
Continuing in its mistaken belief that the relevant
inquiry concerned whether the word “regulate”
delegated taxation power, the Federal Circuit noted
“examples where Congress has granted the power to
regulate to the executive branch without delegating
the power to impose tariffs.” Id. Those examples
included the Security and Exchange Commission’s
(SEC) statutory power “to regulate the trading of
[tradeable assets].” Id. (citation omitted). The Federal
Circuit reasoned that interpreting IEEPA’s reference
to “regulate” to include tariff authority would require
concluding “that Congress delegated to the SEC power
to tax substantial swaths of the American economy.”
Id. (emphasis added). The Federal Circuit did not
explain why it had focused that part of its analysis on
the word “regulate,” rather than the relevant phrase
used by IEEPA: “regulate … importation,” 50 U.S.C.
§ 1702(a)(1)(B) (emphasis added). Nor did the Federal
Circuit contend that agencies such as the SEC are
empowered to regulate importation.
The Federal Circuit also referenced other tariff
statutes. “[I]n each statute delegating tariff power to
the President,” the Federal Circuit reasoned,
“Congress has provided specific substantive
limitations and procedural guidelines to be followed in
imposing any such tariffs.” V.O.S. Selections, 2025
WL 2490634, at *12. The court thus thought it
“unlikely that Congress intended, in enacting IEEPA,
16
to depart from its past practice and grant the
President unlimited authority to impose tariffs.” Id.
The court did not contend that the other tariff statutes
were limited (like IEEPA) to addressing unusual and
extraordinary threats.
The Federal Circuit also ruled that the challenged
tariffs violated the major questions doctrine because
the claimed authority was “‘unheralded’ and
‘transformative.’” Id. at *14 (citation omitted). Here,
the Federal Circuit erroneously focused on the
taxation power to reject the suggestion that the major
questions doctrine should not apply in the foreign
affairs and national security contexts. Id. at *15. As
the court reasoned, although “the President … has
independent constitutional authority in” the foreign
affairs and national security settings, “the power of
the purse (including the power to tax) belongs to
Congress,” and “the President has no authority to
impose taxes.” Id. (emphases added).
Finally, the Federal Circuit reasoned that “[t]he
Government’s interpretation of IEEPA would render
it an unconstitutional delegation.” Id. at *22. Here,
too, the Federal Circuit erroneously assumed tariffs
must be a means of taxation. As the Federal Circuit
put it: “Because taxation authority constitutionally
rests with Congress, any delegation of that authority
… must at least set out an intelligible principle.” Id.
(emphasis added). “For taxes,” the Federal Circuit
reasoned, “it would pose a constitutional problem if
the statute gives the executive branch power, all on
its own, to raise” money “with no ceiling.” Id. (cleaned
up) (emphasis added).
17
C.
Certiorari-Stage Briefing
In certiorari-stage briefing, private respondents
double-down on the lower courts’ mistaken conclusion
that tariffs must be an exercise of taxation power.
Private respondents stress that “Congress, not the
President, has authority over all taxes on the
American people, including ‘Duties’ and ‘Imposts’—
i.e., tariffs.” Mem. for Private Respondents at 2,
Trump v. V.O.S. Selections, Inc., No. 25-250 (U.S.
Sept. 5, 2025). By conflating tariffs with taxes, their
argument runs against Founding-era usage of the
relevant terms. “By 1787,” Americans understood
that “not all duties were taxes: Some were imposed
not for revenue but merely to regulate (or effectively
prohibit) trade in particular articles.” Natelson,
supra, at 320.
Private respondents also argue that, for this Court
to conclude that IEEPA delegates tariff authority, this
Court would have to “pump[] into the word
‘regulate’—which occurs in hundreds of statutes—the
authority to ‘tax,’ which would give the President
overnight the power to tax every corner of the
economy that is subject to regulation.” Mem. for
Private Respondents at 3. That is incorrect, because
IEEPA need not delegate taxation authority to
delegate tariff authority; IEEPA can instead delegate
authority to regulate foreign commerce. Moreover,
IEEPA does not use the word “regulate” in isolation;
IEEPA uses the term “regulate … importation.” 50
U.S.C. § 1702(a)(1)(B) (emphasis added). Notably,
private respondents do not argue that hundreds of
statutes contain the phrase “regulate … importation.”
18
III.
The Ordinary Meaning of IEEPA
Delegates Traditional Tariff Authority.
Both the District Court and the Federal Circuit
relied on legislative history. Learning Resources,
2025 WL 1525376, at *12; V.O.S. Selections, 2025 WL
2490634, at *6. For purposivist jurists, the legislative
history should confirm that IEEPA delegates tariff
authority. The legislative history references Yoshida
II, which recognized that the phrase “regulate …
importation” empowers the President to impose
duties, V.O.S. Selections, 2025 WL 2490634, at *6–7
(citing H.R. Rep. No. 95-459, at 5 (1977)).
But legislative history is of marginal relevance to
textualist jurists.5 Textualists “approach language
from the perspective of an ordinary English speaker—
a congressional outsider.”
Amy Coney Barrett,
Congressional Insiders and Outsiders, 84 U. Chi. L.
Rev. 2193, 2194 (2017). Approaching IEEPA from the
perspective of the ordinary English speaker outside of
Congress leads to the conclusion that IEEPA
delegates tariff authority. That is because tariffs
have, for over two hundred years, been a familiar and
well-known means of regulating foreign commerce.
5
Textualists might use legislative history as one piece of
evidence for triangulating original public meaning. Here, the
reference to Yoshida II in the legislative history suggests that
legislators in the 1970s were aware that the phrase “regulate …
importation” was understood by congressional outsiders (e.g., the
Yoshida II court and the Nixon administration) to encompass the
authority to impose duties.
19
A.
Congress Need Not Use Magic Words
Since the Founding, tariffs have been a familiar
and well-known means of regulating foreign
commerce.
And evidence such as dictionary
definitions, the Yoshida II opinion, and the Nixon
Administration’s tariff position indicate that tariffs
were still a familiar and well-known means of
regulating foreign commerce in the 1970s.6 Thus, like
the revolutionary pamphleteers—i.e., ordinary
Americans who understood tariffs as a means of
commerce-regulation—the ordinary reader in 1977
understood IEEPA’s use of the phrase “regulate …
importation” to include the power to impose tariffs.
It is immaterial that courts might prefer Congress
to have drafted IEEPA using different words; drafting
decisions are for Congress. And there are weighty
reasons for courts not to unnecessarily insert
themselves into the messy and dangerous world of
international relations by reading a traditional and
familiar means of regulating foreign commerce (i.e.,
tariffs) out of an emergency statute.
Because the ordinary meaning of IEEPA
encompasses the power to impose tariffs, it is
inappropriate for courts to require Congress to use
magic words—such as “taxes,” “duties,” or “tariffs”—
to delegate tariff authority. To start with the word
6
See supra note 4 and corresponding text (discussing definitions
of “tariff” and “regulate” from the 1970s and noting those
definitions indicate that, when IEEPA was enacted, the
Founding-era understanding of tariffs had not been
meaningfully altered).
20
“taxes”: tariffs are a well-known means of regulating
commerce. It is thus nonsensical to require Congress
to use the word “tax” to delegate tariff authority that
need not flow from Congress’s taxation power.
Requiring Congress to use words such as “tariffs”
or “duties” to delegate commerce-regulation power
would be slightly less absurd. That is because tariffs
and duties can be imposed for taxation and commerceregulation reasons. See, e.g., Natelson, supra, at 320.
But just because Congress could use those terms does
not mean that Congress must use those terms.
Legislators in Congress can instead expect the phrase
“regulate … importation” to be interpreted against the
backdrop of over two hundred years of history, which
demonstrates that tariffs are a traditional and wellknown means of regulating foreign commerce
conducted through importation.
B.
Surrounding Terminology in IEEPA
Confirms a Delegation of Tariff
Authority
IEEPA empowers the President to choose between
a wide range of tools to “deal with” emergencies. 50
U.S.C. § 1702(b)(2). At one end of the spectrum, the
President can “investigate” foreign “importation.” Id.
§ 1702(a)(1)(B). At the other end, the President can
outright “prohibit” imports. Id. It was sensible for
IEEPA’s drafters to include the word “regulate”
between “investigate” and “prohibit.” Id. Moreover,
the use of the term “prohibit” alongside the related
term “regulate” supports the conclusion that an
ordinary reading of IEEPA grants the President
emergency tariff-flexibility.
21
Since the Founding, commerce-regulating tariffs
could be used both to “regulate” and “prohibit” foreign
importation. Natelson, supra, at 320. In some
instances, domestic industry might be sufficiently
protected from unusual and extraordinary threats by
regulatory-tariffs
that
merely
slow
foreign
importation; in other situations, it might be necessary
to set regulatory-tariffs at rates high enough to
effectively prohibit certain imports. By opting to
“regulate” imports, id., President Trump has opted to
use one of the related tools listed in IEEPA.
C.
The President Need Not Rely on
Non-Emergency Statutes During an
Emergency
Interpreting IEEPA within the broader context of
other tariff statutes confirms the conclusion that
IEEPA delegates tariff authority. But the lower
courts reasoned that, because Congress has imposed
limits on the President’s tariff authority in other
statutes, Congress did not intend to delegate a lessrestricted tariff authority via IEEPA. Learning
Resources, 2025 WL 1525376, at *9; V.O.S. Selections,
2025 WL 2490634, at *12. That argument is flawed
because other tariff statutes are not reserved (as
IEEPA is reserved) to dealing with “unusual and
extraordinary threat[s].” 50 U.S.C. § 1701(b). A
sensible statutory framework includes both
emergency and non-emergency tariff power, and it
would upset that framework to require the President
to abide by non-emergency requirements when the
President has instead invoked emergency statutory
authority.
22
The broader statutory framework reveals that,
although the President must abide by one set of
statutory constraints in situations that are not
“unusual and extraordinary,” the President is bound
by a different set of constraints (i.e., IEEPA
constraints) when he invokes IEEPA to combat
“unusual and extraordinary threat[s].”
Id.
As
Professor Jack L. Goldsmith explains, “IEEPA is an
independent emergency power with independent aims
and authorities as well as quite different substantive
and procedural requirements tied to emergency
situations.” Goldsmith, The Weaknesses in the Trump
Tariff Rulings, supra.
Courts should not require the President to jump
through the procedural hurdles imposed by nonIEEPA statutes when the President has invoked
IEEPA to respond to an “unusual and extraordinary
threat.” 50 U.S.C. § 1701(b). Otherwise, courts would
upset the broader statutory framework established by
Congress. See also Goldsmith, The Weaknesses in the
Trump Tariff Rulings, supra (“[A]ny adverse impact
of IEEPA’s expansive emergency power on the more
carefully gauged tariff and other statutes should be
addressed to Congress.”).
D.
Congress
Need
Not
Taxation Authority to
Tariff Authority
Delegate
Delegate
Private respondents suggest that, for this Court to
conclude that IEEPA delegates tariff authority, this
Court would have to “pump[] into the word ‘regulate’
… the authority to ‘tax.’”
Mem. for Private
Respondents at 3. That is incorrect; tariffs need not
23
be an exercise of taxation power. Tariffs can instead
be an exercise of commerce-regulation power.
If private respondents continue to insist that
IEEPA must delegate taxation power to delegate tariff
power, this Court should consider asking private
respondents the following question at oral argument:
Do you concede that Congress may delegate
tariff authority by delegating commerceregulation authority, rather than by delegating
taxation authority?
Private respondents may be tempted to partially
concede the point by noting, as the Federal Circuit
did, that “Congress may use its taxing power in a
manner that has a regulatory effect,” V.O.S.
Selections, 2025 WL 2490634, at *12.7 But that
sleight-of-hand only confuses the issue. The relevant
question is not whether IEEPA delegates taxation
authority through the phrase “regulate …
importation.”
The relevant question is instead
whether IEEPA delegates traditional commerceregulation authority through the phrase “regulate …
importation.”
7
On this tangential point, the Federal Circuit was correct. And
for similar reason, the Government is correct to note rulings
indicating that “regulating trade includes imposing taxes or
tariffs.” Opening Br. for Govt. at 21, Nos. 24-1287, 25-250 (U.S.
Sept. 19, 2025). But even if Congress may empower the
President to regulate trade via taxes, Congress need not take
that route to delegate tariff authority. Some (but not all) tariffs
are taxes.
24
E.
Other Statutory References
“Regulate” Are Distinct
to
The Federal Circuit and private respondents
suggest that, if IEEPA is interpreted to delegate tariff
authority, other statutes containing the word
“regulate” must be understood as delegating taxation
authority. V.O.S. Selections, 2025 WL 2490634, at
*12; Mem. for Private Respondents at 3. There are
two problems with that argument.
First, IEEPA does not use the word “regulate” in
isolation. IEEPA instead uses the phrase “regulate …
importation.” 50 U.S.C. § 1702(a)(1)(B) (emphasis
added). The latter phrase clearly encompasses the
power to regulate foreign importation through
traditional and well-known means (i.e., tariffs).
Reasonable interpreters understand that different
statutes empower different actors to regulate
different things.
Recognizing IEEPA’s grant of
import-regulation power as including tariff authority
does not require recognizing that unrelated
regulatory agencies—which are not empowered to
regulate importation—are similarly empowered to
impose tariffs.
Second, a ruling that IEEPA empowers the
President to impose commerce-regulating tariffs
would not signal that every statutory reference to
“regulate” includes a power to tax. That is because
tariffs need not be an exercise of taxation power;
tariffs can instead be an exercise of commerceregulation power. This Court can (and should) rule
that IEEPA delegates a traditional form of commerceregulating power (i.e., tariffs). And it would be absurd
25
to interpret such a ruling as suggesting that distinct
statutory uses of the term “regulate” necessarily
delegate taxation power.
F.
Commerce-Regulating Tariffs May
Raise Revenue
Because the Government has publicly highlighted
that the challenged tariffs raise significant revenue,
challengers might suggest that the challenged tariffs
must be defended as an exercise of taxation power.
But that argument turns on the mistaken idea that
commerce-regulating tariffs may not raise revenue.
Commerce-regulating tariffs may raise revenue.
As noted, “during the constitutional debates
Americans considered exactions adopted primarily for
regulatory purposes to be fundamentally different
from taxes, which were enacted primarily for
revenue.” Natelson, supra, at 307. In this case, the
legal evidence demonstrates that the challenged
tariffs are enacted primarily for regulatory purposes.
Neither the executive orders relating to contraband
drug tariffs, nor the orders relating to reciprocal
tariffs, stress a desire to raise revenue. Instead, those
orders establish that the tariffs are a means of
regulating foreign commerce.
First consider the contraband drug tariffs. The
relevant executive orders make clear that those tariffs
are intended to encourage countries to stop the
importation of contraband drugs into the United
States. See, e.g., Exec. Order No. 14,193, 90 Fed. Reg.
9,113 (Feb. 7, 2025); Exec. Order No. 14,194, 90 Fed.
Reg. 9,117 (Feb. 7, 2025); Exec. Order No. 14,195, 90
Fed. Reg. 9,121 (Feb. 7, 2025). The goal of those tariffs
26
is not to raise revenue by allowing contraband drugs
to continue flowing into the country so long as those
drugs are taxed. Instead, the stated goal is to apply
financial pressure to stop the importation of
contraband drugs. That falls within a traditional use
of the power to regulate commerce. At the Founding,
duties could be imposed “to regulate (or effectively
prohibit) trade in particular articles.” Natelson,
supra, at 320. And this Court’s Commerce Clause
jurisprudence recognizes that federal commerceregulation power extends to the illegal drug trade.
Gonzales v. Raich, 545 U.S. 1, 26 (2005).
Regulating commerce is also the stated goal of the
reciprocal tariffs. Those tariffs are intended to
improve “domestic production capacity” that was
negatively impacted by “trade deficits.” Exec. Order
No. 14,257, 90 Fed. Reg. 15,041, 15,044 (Apr. 7, 2025).
As the President explained, “[t]he absence of sufficient
domestic manufacturing capacity in certain … sectors
… compromises U.S. economic and national security,”
and “military readiness” has been “compromised” by
the trade deficits targeted by these tariffs and “the
concomitant loss of industrial capacity.” Id. at 15,045.
Protecting domestic producers has long been a
motivation of commerce-regulating tariffs.
See
Madison 1828 Letter (discussing “the constitutionality
of the power in Cong[ress] to impose a tariff for the
encouragem[ent] of Manufacture[r]s”); Natelson,
supra, at 305–06 & n.38. And one needs only to reflect
on the COVID-19 pandemic, when domestic
manufacturers transitioned to manufacturing
pandemic-related items, or World War II, when
domestic
manufacturers
transitioned
to
27
manufacturing materials for the war effort, to
understand why protecting domestic industry is
important for national security and foreign affairs
purposes. See, e.g., Norah O’Donnell, How Ford and
GM Joined the Fight Against the Coronavirus, CBS
News (Apr. 27, 2020), https://www.cbsnews.com/news/
ford-general-motors-coronavirus-ventilators-medicalsupplies/.
The legal evidence therefore indicates that the
challenged tariffs were imposed primarily for
commerce-regulation purposes. Of course, commerceregulating tariffs may raise revenue as an incident to
regulating commerce. Even if tariffs are set at a rate
intended to overwhelmingly reduce or even prohibit
imports, some importation can be expected to
continue, and that importation raises revenue.
Moreover, one would expect political actors to inform
the public that commerce-regulating tariffs raise
tremendous8 revenue as an incident to regulating
commerce. Politicians highlight positive results all
the time. But for legal purposes, what matters is
whether the tariffs were enacted primarily for
regulatory or taxation purposes. And the legal
evidence indicates that the challenged tariffs were
primarily imposed to regulate commerce.
8
The amount of revenue raised is not particularly meaningful as
a legal matter. Tariffs regulating a small amount of commerce
can be expected to raise a small amount of revenue; tariffs
regulating a large amount of commerce can be expected to raise
a large amount of revenue.
28
IV.
IEEPA’s
Delegation
Satisfies
the
Nondelegation and Major Questions
Doctrines.
A.
The Constitution’s Nondelegation
Principle Applies Less Stringently
in the Foreign Affairs Context
This Court’s precedents make clear that the
Constitution’s nondelegation principle applies less
stringently in the foreign affairs context than in the
domestic context. See Squitieri, The President’s
Authority to Impose Tariffs, supra, at 7–8 (discussing
cases).
In United States v. Curtiss-Wright Export Corp.,
this Court highlighted important “differences”
between “the powers of the federal government in
respect of foreign or external affairs and those in
respect of domestic or internal affairs,” 299 U.S. 304,
315 (1936). In the foreign affairs context, statutory
delegations are properly interpreted alongside “the
very delicate, plenary and exclusive power of the
President as the sole organ of the federal government
in the field of international relations.” Id. at 320. And
“congressional legislation which is to be made
effective through negotiation … within the
international field must often accord to the President
a degree of discretion and freedom from statutory
restriction which would not be admissible were
domestic affairs alone involved.” Id.
29
“Curtiss-Wright was consistent with earlier, 19th
century Supreme Court precedent.”9 Squitieri, The
President’s Authority to Impose Tariffs, supra, at 7
(citing Marshall Field & Co. v. Clark, 143 U.S. 649,
691 (1892)). And precedent like Curtiss-Wright is
consistent with an originalist understanding of the
Constitution’s structure.
As Justice Gorsuch has explained, “when a
congressional statute confers wide discretion to the
executive, no separation-of-powers problem may arise
if ‘the discretion is to be exercised over matters
already within the scope of executive power.’” Gundy
v. United States, 588 U.S. 128, 159 (2019) (Gorsuch,
J., dissenting) (citation omitted). Justice Gorsuch
cited the “foreign-affairs-related statute in Cargo of
the Brig Aurora” as “an example of this kind of
permissible lawmaking, given that many foreign
affairs powers are constitutionally vested in the
president under Article II.” Id. The Cargo of the Brig
Aurora concerned a statute empowering the President
to exercise authority relating to foreign importation.
11 U.S. 382, 382–83 (1813).
Originalist academics have similarly written about
the nondelegation principle applying differently in the
9
In Consumers’ Research, this Court explained that its
“precedents foreclose th[e] argument” that “tax statutes—and
probably all revenue-raising statutes—have to satisfy a special
nondelegation rule.” 145 S. Ct. at 2497. In reasoning that a
heightened nondelegation test would not apply to revenueraising statutes, this Court did not purport to overrule CurtissWright. Nor has this Court been asked to overrule CurtissWright in these consolidated cases.
30
foreign affairs context. For example, Amicus Squitieri
has argued that, because the Constitution vests
different powers in Congress using different language,
an original understanding of that language indicates
that Congress may delegate different powers
differently.
See Chad Squitieri, Towards
Nondelegation Doctrines, 86 Mo. L. Rev. 1239, 1243,
1294 (2022) (discussing foreign affairs).
And
Professor Michael W. McConnell has argued that “[i]t
is plausible to think that the non-delegation doctrine”
may not apply “to the former royal prerogative powers
given to the legislative branch.”
Michael W.
McConnell, The President Who Would Not Be King
328–29 (2020).
As Professor McConnell explains, “[n]ot all powers
entrusted to Congress are of a strictly ‘legislative’
nature”; instead, “[s]ome are prerogative powers,
previously exercised by the Crown.” Id. at 328. The
power to regulate foreign commerce falls into the
latter category. “[R]oyalist lawyers and judges”
contended that “pre-1688 monarchs had ‘the sole
power’ over foreign trade,” and “[o]ne might” even
“infer” from the relevant texts that “the king’s
prerogative to govern foreign commerce survived the
Glorious Revolution” of 1688. Id. at 214–15.
The power to regulate foreign commerce was, of
course, vested in Congress. But the power’s status as
a power formerly exercised by the king would explain
why, as a historical matter, the power can be more
readily delegated to the President. As Professor
McConnell puts it, the theory would explain why
“[t]he First Congress … delegated to executive
officials” the power “to trade with Indian tribes (which
31
was regarded as a matter of external relations),” and
which did not “intrude[] into the core of the legislative
power,” while relatively “stronger nondelegation
norms survive in the context of power that is
especially central to the legislative branch, such as
domestic taxation.” Id. at 333–34 (emphases added).
Moreover, Professor McConnell suggests the “theory
may … provide a superior grounding for Field v.
Clark, where Congress gave the President a
bargaining chip to use in foreign negotiations, and
Curtiss-Wright, which recognized a broader range of
legitimate delegation in the foreign affairs arena than
in domestic law, though for unpersuasive reasons.”
Id. at 334.
B.
IEEPA Satisfies the
Nondelegation Doctrine
Domestic
Even ignoring the precedential and originalist
arguments concerning the foreign affairs context,
IEEPA’s delegation of tariff authority satisfies the
version of nondelegation doctrine applicable in the
domestic context. That is because IEEPA cabins the
President’s discretion with an intelligible principle.
IEEPA limits who can impose tariffs (the
President), 50 U.S.C. § 1702(a)(1); what the President
can impose tariffs on (specific categories of foreign
property), id. § 1702(a)(1)(B), (b); when the President
can impose tariffs (after a declared emergency), id.
§ 1701(b); the time-length tariffs can last without
reauthorization (one year unless sooner terminated by
Congress), id. § 1622(a)(1), (d); and the scope and
magnitude of the tariffs—which is limited by the
statutory requirement that IEEPA tariff-authority
32
“may only be exercised to deal with an unusual and
extraordinary threat … and may not be exercised for
any other purpose,” id. § 1701(b) (emphases added).
Under Consumers’ Research’s rationale, IEEPA
imposes both “a floor and a ceiling” on the delegated
authority, 145 S. Ct. at 2502, and tariffs set at too low
or high a rate to “deal with” the declared threat are
not statutorily permitted. To be sure, IEEPA’s “deal
with” limitation leaves the President broad authority
to set the correct tariff rates—and courts should not
often second-guess that decision. But IEEPA’s “deal
with” limitation nonetheless imposes a legal limit that
courts can invoke in edge cases.
To paraphrase this Court’s rationale in
Consumers’ Research: “If you told a friend to order”
food to deal with “five people[,] and 500 boxes of pizza
showed up at your house, you would not think he had
followed instructions.” Id. Or to offer a follow-on
analogy: If, after the pizza party, you asked your
friend to “deal with” the dirty dishes, you would not
think your friend followed instructions if he washed
only half of the dishes—or if he washed all of the
dishes in the sink, ordered a new set, and washed
those too. The ordinary reader understands that the
delegated authority to “deal with” threats is properly
interpreted in light of intuitive background principles
concerning proportional defense. See, e.g., 3 William
Blackstone, Commentaries *4 (1769) (“[C]are mu[s]t
be taken that” self-defense “does not exceed the
bounds of mere defence and prevention.”).
33
C.
IEEPA Satisfies the Major Questions
Doctrine
This Court has never applied the major questions
doctrine in the foreign policy and national security
settings. Consumers’ Rsch., 145 S. Ct. at 2516
(Kavanaugh, J., concurring). Nor should it. A jurist
who understands the doctrine as a linguistic canon
should account for the fact that Congress routinely
delegates “major” authority to the President in those
settings. See id. And the emergency context of IEEPA
makes the analysis even easier.
To extend Justice Barrett’s major questions
analogy: although a babysitter might not ordinarily
have the authority to take the kids on “a road trip,”
sometimes “obvious contextual evidence,” such as an
unusual and extraordinary hurricane emergency,
indicates that a babysitter empowered to deal with
emergencies may deal with the hurricane emergency
by driving the children to safety. Nebraska, 600 U.S.
at 513–14 (Barrett, J., concurring). Or to use an
analogy to which northerners might better relate:
although a babysitter might not ordinarily have the
authority to take the kids outside of the home at
midnight in the dead of winter, “obvious contextual
evidence,” id. at 514, such as a house fire, would
indicate that a babysitter empowered to deal with
emergencies may deal with the house fire by
evacuating the house. IEEPA is limited to special
emergency contexts, where Congress is expected to
delegate major authority.
A jurist who understands the major questions
doctrine as a substantive canon promoting the
34
constitutional value of nondelegation should ensure
that the major questions doctrine is, like the
nondelegation doctrine, sensitive to the President’s
overlapping authority in the foreign affairs and
national security settings. See Gundy, 588 U.S. at 159
(Gorsuch, J., dissenting).
The major questions
doctrine would not faithfully promote the
nondelegation doctrine if the major questions doctrine
was not itself sensitive to the nondelegation doctrine’s
contours.
The major questions doctrine is not applicable in
these cases for another reason: the President has not
claimed “unheralded” tariff authority. Nearly fifty
years ago, the statutory phrase “regulate …
importation” was judicially recognized as delegating
tariff authority to the President. Yoshida II, 526 F.2d
at 576. Although the tariffs at issue in that case can
be distinguished on policy grounds from the
challenged tariffs in this case (e.g., different tariff
rates), nothing in IEEPA suggests those policy
distinctions are legally relevant.
As Professor
Goldsmith writes: “Even given the differences
between the Nixon and Trump administration
actions, Trump following in the Nixon administration
footsteps based on identical statutory language
reenacted by Congress was not unheralded action,
and certainly falls far outside the novelty/unheralded
action rubric of prior [major questions] cases.” Jack
Goldsmith, The Tariff Case and the Major Questions
Doctrine, Exec. Functions (Sept. 12, 2024),
https://executivefunctions.substack.com/p/the-tariffcase-and-the-major-questions.
35
Finally, and even assuming the major questions
doctrine applies, the challenged tariffs are supported
by “clear congressional authorization,” West Virginia
v. EPA, 597 U.S. 697, 723 (2022). For over two
hundred years, tariffs have been understood as a
traditional and well-known means of regulating
foreign commerce. That traditional power clearly falls
within IEEPA’s authorization to “regulate …
importation.” 50 U.S.C. § 1702(a)(1)(B). It would be
absurd, for example, to conclude that a hypothetical
statute empowering the President to take major
emergency action concerning “professional sports” did
not clearly authorize the President to take major
emergency action concerning “baseball.” That is in
part because baseball is a traditional and well-known
professional sport. So too here, where tariffs are a
traditional and well-known means of regulating
commerce.
36
CONCLUSION
For the foregoing reasons, amicus urges the Court
to reverse in No. 25-250 and to remand for dismissal
in No. 24-1287.
Respectfully submitted,
R. TRENT MCCOTTER
Counsel of Record
SEPARATION OF POWERS CLINIC
COLUMBUS SCHOOL OF LAW
THE CATHOLIC UNIVERSITY OF
AMERICA
3600 John McCormack Rd. NE
Washington, DC 20064
(202) 706-5488
mccotter@cua.edu
September 23, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.