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

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 Writs of Certiorari to the United States Courts of

Appeals for the District of Columbia and Federal Circuits

BRIEF AMICUS CURIAE FOR THE

AMERICA FIRST POLICY INSTITUTE

IN SUPPORT OF RESPONDENTS IN NO. 24-1287

AND PETITIONERS IN NO. 25-250

Jed Rubenfeld

127 Wall Street

New Haven, CT 06511

A lan Dershowitz

Of Counsel

2255 Glades Road

Boca Raton, FL 33431

Michael J. Jones

Counsel of Record

Ivey, Barnum & O’Mara LLC

170 Mason Street

Greenwich, CT 06830

(203) 912-9007

mjones@ibolaw.com

Attorneys for Amicus Curiae

385916

TABLE OF CONTENTS

Table of Authorities………..………………………..

i

Statement of Interest of Amicus Curiae…………

1

Summary of Argument…………….……………….

2

Argument…….……………………………………….

4

I.

It Is Well Established that an Executive

Order Can Be Sustained Under a Statute

the Order Did Not Cite…………….……….

4

II. Section 338 Authorizes the Tariffs at

Issue Here………………………..……..……

7

A. Section 338 confers directly on the

President a “comprehensive” tariff-setting

power to respond to “any burden or

disadvantage” other countries place on U.S.

commerce…………………………..………

7

B. Section 338 has not been implicitly

repealed……………………………....…....

9

C. Under Section 338, the President was

not required to publish or recite any factual

findings in his Executive Orders……….

16

D. The challenged tariffs are expressly

authorized by Section 338, and the Executive

Orders at issue here did in fact sufficiently

set forth the relevant findings………….

19

1. The worldwide and reciprocal tariffs

are squarely covered by Section 338..

20

2. The trafficking tariffs are also covered

by Section 338………..…………………

22

Conclusion…………………………………….……

23

TABLE OF AUTHORITIES

Cases

AFL-CIO v. Kahn, 618 F.2d 784 (D.C. Cir. 1979) ......5

Allen v. State Bd. of Elections, 393 U.S. 544 (1969)...7

American Federation of Gov’t Emps., AFL-CIO v.

Reagan, 870 F.2d 723 (D.C. Cir. 1989).................. 18

Biden v. Texas, 597 U.S. 785 (2022) ....................... 2, 7

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ...........5

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402 (1971) ....................................................... 19

Cornet Stores v. Morton, 632 F.2d 96 (9th Cir. 1980)

................................................................................ 13

Dames and Moore v. Regan, 453 U.S. 654 (1981) ......2

Epic Sys. Corp. v. Lewis, 584 U.S. 497 (2018) .......... 10

Japanese Immigrant Case, 189 U.S. 86 (1903) ........ 17

Learning Res., Inc. v. Trump, No. 25-1248, 2025 U.S.

Dist. LEXIS 103492 (D.D.C. May 29, 2025)...... 9, 15

Maine Community Health Options v. United States,

590 U.S. 296 (2020) .................................... 10, 12, 15

Mapp v. Ohio, 367 U.S. 643 (1961) .............................6

Martin v. Mott, 25 U.S. 19 (1827) ............................. 17

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999) ..................................................5

Philadelphia & T. Ry. v. Stimpson, 39 U.S. (14 Pet.)

448 (1840) ............................................................... 19

Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497

(1936) ................................................................ 11, 12

Radzanower v. Touche Ross & Co., 426 U.S. 148

(1976) ...................................................................... 13

Teague v. Lane, 489 U.S. 288 (1989) ..........................6

ii

United Nat’l Foods, Inc. v. NLRB, 66 F.4th 536 (5th

Cir. 2023) ..................................................................7

United States v. George S. Bush & Co., 310 U.S. 371

(1940) ...................................................................... 17

United States v. Hammond Lead Products, Inc., 440

F.2d 1024 (C.C.P.A. 1971)...................................... 13

United States v. Yoshida Int’l, Inc., 526 F.2d 560

(C.C.P.A. 1975) .........................................................5

V.O.S. Selections, Inc. v. United States, No. 25-00066,

2025 Ct. Intl. Trade LEXIS 67 (C.I.T. May 28,

2025) ....................................................................... 22

Yoshida Int’l, Inc. v. United States, 378 F. Supp.

1155 (Cust. Ct. 1974) ...............................................6

Statutes

15 U.S.C. § 715c......................................................... 19

19 U.S.C. § 1338 ............................................ 10, 15, 23

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

19 U.S.C. § 2411 ............................................ 10, 11, 12

7 U.S.C. § 624 ............................................................ 18

Tariff Act of 1930, ch. 497, § 338, 46 Stat. 704 (19

U.S.C. § 1338) ..........................................1, 3, 4, 7-23

Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978

(1975) ................................................................ 10, 11

Trade Expansion Act of 1962, Pub. L. No. 87-794, 76

Stat. 872 (1962) ...................................................... 11

Other Authorities

CONGRESSIONAL RESEARCH SERVICE, Congressional

and Presidential Authority to Impose Import

Tariffs (Apr. 23, 2025) ............................................ 15

iii

CONGRESSIONAL RESEARCH SERVICE, Presidential

Authority over Trade: Imposing Tariffs and Duties

(Dec. 9, 2016) .......................................................... 14

Eleventh Annual Report of the United States Tariff

Commission (1926–1927) .........................................8

Executive Order 14193, Imposing Duties to Address

the Flow of Illicit Drugs Across Our Northern

Border, 90 Fed. Reg. 9113 (Feb. 1, 2025) .............. 22

Executive Order 14194, Imposing Duties to Address

the Situation at Our Southern Border, 90 Fed. Reg.

9117 (Feb. 1, 2025) ................................................. 22

Executive Order 14195, Imposing Duties to Address

the Synthetic Opioid Supply Chain in the People's

Republic of China, 90 Fed. Reg. 9121 (Feb. 1, 2025)

................................................................................ 22

Executive Order 14257, Regulating Imports With a

Reciprocal Tariff to Rectify Trade Practices That

Contribute to Large and Persistent Annual United

States Goods Trade Deficits, 90 Fed. Reg. 15041

(Apr. 2, 2025) ...................................................... 4, 20

Fifteenth Annual Report of the United States Tariff

Commission (1930–1931) ....................................... 17

Repealing Outdated and Unilateral Tariff

Authorities Act, 119 H.R. 2464 (Mar. 25, 2025) ... 14

S. Rep. No. 97-564, 97th Cong. 2d Session, H.R. 4566

(Sept. 21, 1982)....................................................... 13

Sixth Annual Report of the United States Tariff

Commission (1921–1922) .........................................9

Thirteenth Annual Report of the United States Tariff

Commission (1928–1929) .........................................8

Twenty-fifth Annual Report of the United States

Tariff Commission (1940–1941). ........................... 17

iv

BRIEF AMICUS CURIAE FOR THE

AMERICA FIRST POLICY INSTITUTE IN

SUPPORT OF RESPONDENTS IN NO. 24-1287

AND OF PETITIONERS IN NO. 25-250

Statement of Interest of Amicus Curiae

The America First Policy Institute (AFPI) is a

non-profit, non-partisan research institute dedicated

to putting the American people first. Its guiding

principles include liberty, free enterprise, national

greatness, foreign-policy engagement in the American

interest, and the primacy of American workers,

families, and communities. AFPI has a profound

interest in this case. The tariffs enjoined below are a

pillar of the America-first policies of the current

Administration, and AFPI has expressed in print its

strong support for them. See, e.g., AMERICAN FIRST

POLICY INSTITUTE, Rethinking Tariffs, May 9, 2025,

www.americafirstpolicy.com/issues/rethinkingtariffs-as-bold-tools-for-american-security-globalfairness.

AFPI respectfully submits this brief to fill a

significant gap in the arguments made to this Court.

As explained below, a statute that the courts below

did not consider—the Tariff Act of 1930—expressly

authorizes the President of the United States to

impose tariffs of exactly the kind at issue here. 1

1 No party or party’s counsel authored this brief in whole or in

part, and no person other than the amicus curiae, its members,

or its counsel contributed money intended to fund the preparing

or submission hereof.

1

Summary of Argument

The stakes of this case are enormous. The

rulings below threaten to eviscerate the foreign policy

of the President of the United States and cause chaos

in the nation’s foreign affairs. They also threaten to

subject the United States to a hundred-billion-dollar

damages liability and to deprive the country of

perhaps trillions of dollars in current and future

revenue.

Past decisions of this Court confronting so

monumental a judicial intrusion into a president’s

foreign policy are exceedingly rare. Perhaps the last

such case was Dames and Moore v. Regan, 453 U.S.

654 (1981), in which a federal district had enjoined

certain executive measures dealing with Iranian

assets in the United States in response to the embassy

hostage crisis of 1979-81. Granting expedited review,

this Court reversed, refusing to intervene into a

president’s “resolution of a major foreign policy

dispute” without a clear congressional mandate. Id. at

688. For over two hundred years, this Court has

“taken care to avoid ‘the danger of unwarranted

judicial interference in the conduct of foreign policy,’

and declined to ‘run interference in [the] delicate field

of international relations’ without ‘the affirmative

intention of the Congress clearly expressed.’” Biden v.

Texas, 597 U.S. 785, 805 (2022) (citation omitted).

Accordingly, before the judiciary renders a final

decision in a case as consequential as this, it is

essential that all relevant statutes be considered, to

ensure that Congress’s intentions have been

accurately and comprehensively assessed. That did

not happen here. In fact, the single most relevant

federal statute was not considered at all.

2

The District Court for the District of Columbia

enjoined the tariffs at issue here on the ground that

those tariffs were not authorized by the International

Emergency Economic Powers Act (“IEEPA”). The

Federal Circuit so ruled as well. But a different

statute not considered by the lower courts, the Tariff

Act of 1930, does authorize these tariffs, and it does so

expressly.

Section 338 of the Tariff Act of 1930 confers

directly on the President the power to impose tariffs

on any country in any amount up to 50%, “whenever

the President shall find as a fact that any foreign

country places any burden or disadvantage” on

United States commerce “directly or indirectly, by law

or administrative regulation or practice, by or in

respect to any customs, … charge, exaction,

classification, regulation, condition, restriction, or

prohibition.” 19 U.S.C. § 1338 (a), (d). Though rarely

invoked, Section 338 is fully operative today, and all

or nearly all of President Trump’s worldwide and

reciprocal tariffs—enjoined by the courts below—fit

Section 338 like a glove.

The reason the courts below did not apply

Section 338 is understandable: the pertinent

Executive Orders did not cite the Tariff Act of 1930.

But those Orders invoked the President’s powers

under all “the laws of the United States,” and as will

be shown below, it is well established that an

Executive Order may be upheld under a statute not

specifically cited in the Order itself. This Court has

done so, as has the Federal Circuit’s predecessor, the

Court of Customs and Patent Appeals, in a case also

involving presidentially-imposed tariffs.

Thus in addition to the IEEPA, Section 338 of

the Tariff Act of 1930, which expressly authorizes the

3

President to impose tariffs of exactly the kind at issue

in this case, must be considered before the judiciary

enters final judgment here. Under Section 338, AFPI

respectfully submits that this Court should either

uphold the challenged tariffs or, at a minimum, vacate

and remand for further review below.

ARGUMENT

In the Executive Orders relevant to these cases,

President Trump invoked “the authority vested in me

as President by the Constitution and the laws of the

United States of America, including the

International Emergency Economic Powers Act.” 2

Despite the fact that the reference to the IEEPA was

expressly non-exclusive, these cases have proceeded

as if the IEEPA were the only relevant source of

statutory authority for the challenged tariffs. But (1)

it is well established that an Executive Order can be

upheld by the judiciary under a statute the Order

itself did not cite; and (2) the tariffs at issue here are

expressly authorized by the Tariff Act of 1930.

I.

It Is Well Established that an Executive

Order Can Be Sustained Under a Statute

the Order Did Not Cite.

Courts frequently uphold Executive Orders

under a statute the Orders did not cite. See, e.g.,

Chrysler Corp. v. Brown, 441 U.S. 281, 304-05 &

2 See, e.g., Executive Order 14257, Regulating Imports With a

Reciprocal Tariff to Rectify Trade Practices That Contribute to

Large and Persistent Annual United States Goods Trade

Deficits, 90 Fed. Reg. 15041, 15041 (Apr. 2, 2025) (emphasis

added).

4

nn.33-36 (1979) (discussing executive orders citing no

specific statutory authority upheld under a variety of

statutes); Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172, 189 (1999) (“Because the

Removal Act did not authorize the 1850 [executive]

order, we must look elsewhere for a constitutional or

statutory authorization for the order.”); AFL-CIO v.

Kahn, 618 F.2d 784, 790-91 & nn.32-33 (D.C. Cir.

1979).

Accordingly, when an Executive Order cites as

authority a statute later deemed inapplicable, courts

may uphold the Order under a different statute. In a

case closely analogous to this one, the Federal

Circuit’s predecessor, the Court of Customs and

Patent Appeals, did exactly that. See United States v.

Yoshida Int’l, Inc., 526 F.2d 560 (C.C.P.A. 1975).

Yoshida upheld under the Trading With the

Enemy Act of 1917 (“TWEA”) certain tariffs imposed

by President Richard Nixon’s Executive Proclamation

4074, see id. at 584, but that Proclamation had not

invoked or cited TWEA. As correctly stated by the

D.C. District Court in its opinion below:

In issuing Proclamation 4074, President Nixon

instead invoked the Tariff Act of 1930 and the

Trade Expansion Act of 1962…. H.R. Rep. No.

95-459, at 5 (1977) (“[TWEA] was not among

the statutes cited in the President’s

proclamation as authority for the surcharge.”).

TWEA was first cited “later by the Government

in response to a suit brought in Customs Court

by Yoshida International”—i.e., in Yoshida.

H.R. Rep. No. 95-459, at 5.

Learning Res., Inc. v. Trump, 2025 U.S. Dist. LEXIS

103492, at *32 n.10 (citations omitted).

5

The lower court in Yoshida, known at that time

as the Customs Court, first ruled that the two statutes

expressly invoked by Proclamation 4074 did not

authorize the tariffs at issue. See Yoshida Int’l, Inc. v.

United States, 378 F. Supp. 1155, 1168 (Cust. Ct.

1974). The Customs Court then held it could consider

TWEA notwithstanding the fact that the

Proclamation had not cited that statute:

With respect to defendant’s contention that the

Trading with the Enemy Act … serves as

further authority for the validity of

Presidential Proclamation 4074, the plaintiff

submits that no consideration should be given

thereto inasmuch as the Proclamation does not

specifically refer to this Act as a part of its

statutory authority…. To sustain the plaintiff’s

contention would be to place an unwarranted

limitation upon judicial review….

Yoshida, 378 F. Supp. at 1168. On appeal, the Court

of Customs and Patent Appeals upheld the contested

tariffs under TWEA even though the Proclamation

had failed to cite that statute. Yoshida, 526 F.2d at

584. Thus the fact that the Executive Orders in this

case do not cite the Tariff Act of 1930 in no way

prevents this Court from upholding those Orders

thereunder.

Similarly, the fact that the Government’s briefs

have not argued the applicability of Section 338 is no

bar to this Court’s consideration thereof. See, e.g.,

Teague v. Lane, 489 U.S. 288, 300 (1989) (deciding

case based on argument “raised only in an amicus

brief”); Mapp v. Ohio, 367 U.S. 643, 646 n.3

(1961) (applying exclusionary rule to the States even

although such a course of action was urged only

by amicus curiae).

6

Even for reasons of mere “judicial economy,”

this Court always has authority to “determine the

applicability” of a statute “not argued below.” Allen v.

State Bd. of Elections, 393 U.S. 544, 554 (1969). A

fortiori, in a case of this magnitude, to avoid both error

and unwarranted constitutional conflict with the

Executive, the Court may unquestionably take notice

of a directly-applicable but uncited statute. Indeed,

because of this Court’s commitment not to “‘run

interference in [the] delicate field of international

relations’ without ‘the affirmative intention of the

Congress clearly expressed,’” Biden v. Texas, 597

U.S. at 805 (emphasis added), it is imperative for the

Court to take notice here of Section 338, in which the

“affirmative intention of the Congress” is “clearly

expressed.” See also, e.g. United Natural Foods, Inc.

v. NLRB, 66 F.4th 536, 556 (5th Cir. 2023) (Oldham,

J., dissenting) (“Does anyone think that, when a party

presents [a] legal question … in federal court, a

federal judge is somehow disabled from reading any

… statute … or other authority not cited in the party’s

brief? Of course not. We are duty-bound to understand

the legal questions presented to us.”), majority

opinion vacated, 144 S. Ct. 2708 (2024).

II.

Section 338 Authorizes the Tariffs at

Issue Here.

A. Section 338 confers on the President a

“comprehensive” tariff-setting power to

respond to any discriminatory “burden

or disadvantage” other countries place

on U.S. commerce.

Section 338 of the Tariff Act of 1930 directly

7

confers on the President the power to impose tariffs

on any country in any amount up to 50%, “whenever

the President shall find as a fact that any foreign

country places any burden or disadvantage” on

United States commerce “directly or indirectly, by law

or administrative regulation or practice, by or in

respect to any customs, tonnage, or port duty, fee,

charge, exaction, classification, regulation, condition,

restriction, or prohibition.” 19 U.S.C. § 1338(a), (d).

Legislative history confirms that Section 338

was intended to grant the President a

“comprehensive” tariff-setting authority to respond to

all forms of discrimination against U.S. commerce.

Section 338 was a recodification of—its text is

substantially identical to—Section 317 of the Tariff

Act of 1922, which, as the United States Tariff

Commission stated decades ago, dealt with

discrimination against U.S. commerce “in a

comprehensive manner,” 3 “cover[ing] discriminations

of all varieties,” whether the cause of disadvantage to

U.S. commerce lay in “customs duties or other

charges,

or

in

classifications,

prohibitions,

restrictions, or regulations of any kind.” 4 Legislative

history suggests that Congress delegated this power

to the President to ensure that American tariffs could

be adjusted rapidly and frequently (which is difficult

if not impossible for Congress itself to do) in response

to changing circumstances. 5

Eleventh Annual Report of the United States Tariff

Commission, at 2 (1926–1927).

4 Thirteenth Annual Report of the United States Tariff

Commission, at 46 (1928–1929).

5 Section 317 of the Tariff Act of 1922 was enacted after thenPresident Harding sent a message to Congress warning that “[a]

rate may be just to-day and entirely out of proportion six months

3

8

Section 338 authorizes tariffs of two kinds.

Under paragraphs (a)(1) and (e), the President may

impose tariffs for most-favored-nation violations—i.e.,

when he finds that a foreign country has placed a

“limitation” on U.S. commerce not placed on any

“third country.” 19 U.S.C. § 1338(a)(1), (e). Under

paragraphs (a)(2) and (d), the President may impose

tariffs when he finds that a country is using tariffs or

any other measure to “place the commerce of the

United States at a disadvantage” vis-à-vis that

country’s own commerce (or any other nation’s

commerce). 19 U.S.C. § 1338(a)(2), (d). As the D.C.

District Court put it, “Section 338 of the Tariff Act of

1930 grants the President the authority to ‘declare …

duties’ of up to 50 percent on countries that have

imposed … limitations that are ‘not equally enforced

upon the like articles of every foreign country,’”—i.e.,

most-favored-nation violations—“or that have

‘[d]iscriminate[d] in fact against the commerce of the

United States,’” including by disadvantaging U.S.

commerce vis-à-vis their own commerce. Learning

Res., Inc. v. Trump, No. 25-1248, 2025 U.S. Dist.

LEXIS 103492, at *25 (D.D.C. May 29, 2025)

(emphasis added).

B. Section 338 has not been implicitly

repealed.

Evidently concerned that Section 338 fatally

from to-day. If our tariffs are to be made equitable and not

necessarily burden our imports and hinder our trade abroad,

frequent adjustment will be necessary for years to come.” Sixth

Annual Report of the United States Tariff Commission, at 1–2

(1921–1922) (quoting president’s message to Congress of

December 6, 1921).

9

undermines their position, the VOS Plaintiffs and an

amicus brief supporting them (the “Allen brief”)

argued in the Federal Circuit (in response to AFPI’s

amicus brief) that Section 338, although currently

codified at 19 U.S.C. § 1338, had been implicitly

“repealed” by later-enacted provisions, specifically

Section 252 of the Trade Expansion Act of 1962 and

19 U.S.C. § 2411, which codifies Section 301 of the

Trade Act of 1974. (CAFC ECF No. 92 at 28; CAFC

ECF No. 90 at 23-24.) But not a single case has ever

so held, or even so hinted. On the contrary, the notion

that Section 338 has been implicitly repealed flies in

the face of controlling law and is squarely contradicted

by numerous judicial opinions, legislative bills, and

non-partisan congressional reports all recognizing

that Section 338 remains fully in effect today.

As this Court has repeatedly held, implicit

repeals are strongly disfavored:

“[R]epeals by implication are not favored” and

are a “rarity.” Presented with two statutes, the

Court will “regard each as effective” unless

Congress’ intention to repeal is “clear and

manifest,” or the two laws are “irreconcilable.”

“[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent

a

clearly

expressed

congressional

intention to the contrary, to regard each as

effective.”

Maine Community Health Options v. United States,

590 U.S. 296, 315 (2020) (citations omitted) (emphasis

added). “[C]onfronted with two Acts of Congress

allegedly touching on the same topic, this Court is not

at ‘liberty to pick and choose among congressional

enactments.’” Epic Sys. Corp. v. Lewis, 584 U.S. 497,

510 (2018) (citation omitted). Instead, a “party

10

seeking to suggest that … one displaces the other …

bears the heavy burden of showing ‘a clearly

expressed congressional intention’ that such a result

should follow. The intention must be ‘clear and

manifest.’” Id. (citations omitted).

Far from expressing a “clear and manifest”

intent to repeal Section 338, the 1962 and 1974 acts

both express a clear intent not to repeal it. Both acts

contain a section entitled “Relation to Other Laws”

expressly stating which prior statutory provisions are

being repealed. 6 Included in these repealed provisions

are several sections from the Tariff Act of 1930, but

Section 338 is not among them.

In other words, Congress knew exactly how to

repeal provisions from the Tariff Act of 1930 and other

prior tariff statutes when it passed the 1962 and 1974

acts, and it did repeal numerous such provisions. But

it did not repeal Section 338, conclusively refuting any

notion that there was a “clear and manifest” intention

to repeal that section.

Without mentioning these plain expressions of

Congress’s intent not to repeal Section 338, the Allen

brief argued that Section 252 of the 1962 act and 19

U.S.C. § 2411 “‘cover[] the whole subject’” of Section

338 and hence effected an implicit repeal under

Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497

(1936). (CAFC ECF No. 90 at 23 (quoting Posadas, 296

U.S. at 503).) This contention is baseless.

To begin with, neither Section 252 nor 19

U.S.C. § 2411 remotely “covers the whole subject” of

Section 338. Section 252 permitted the President to

impose tariffs on countries that maintained “import

6 See Trade Expansion Act of 1962, Pub. L. No. 87-794, § 257, 76

Stat. 872, 881-82 (1962); Trade Act of 1974, Pub. L. No. 93-618,

§ 602, 88 Stat. 1978, 2072-73 (1975).

11

restrictions against United States agricultural

products,” while 19 U.S.C. § 2411 lays out procedures

through which the U.S. Trade Representative can

impose tariffs in designated circumstances.

By

contrast, Section 338 arms the President himself with

tariffing power over all imports from any foreign

country whenever he finds that a country, “directly or

indirectly, … by or in respect to any customs, tonnage,

or port duty, fee, charge, exaction, classification,

regulation, condition, restriction or prohibition …

place[s] the commerce of the United States at a

disadvantage.” Thus neither Section 252 nor 19

U.S.C. § 2411 comes close to covering Section 338’s

whole subject matter. On the contrary, Section 338 is

fully “capable of co-existence” with both later-enacted

provisions and hence, under Maine Community, “it is

the duty of the courts … to regard [it] as effective.” 590

U.S. at 315.

Moreover, even assuming arguendo that the

later-enacted provisions “covered the whole subject” of

Section 338—which they emphatically do not—the

Posadas Court expressly stated that “cover[ing] the

whole subject” of a previous enactment does not

suffice to effect an implicit repeal: “It is not sufficient

… ‘to establish that subsequent laws cover some or

even all of the cases provided for by [the prior act]; for

they may be merely affirmative, or cumulative, or

auxiliary.” Posadas, 296 U.S. at 504 (citation omitted).

“[T]he mere fact that the latter act covers the whole

subject” does not “demonstrate[] an intention

completely to substitute the latter act for the first.” Id.

at 503-04. Rather, to effect a disfavored implicit

repeal, the later statute must “‘cover[] the whole

ground occupied by the earlier … and the intention

of the legislature to repeal must be clear and

12

manifest.’” Id. at 504 (emphasis added) (citation

omitted); see also Radzanower v. Touche Ross & Co.,

426 U.S. 148, 154 (1976) (Posadas test not satisfied

unless “the intention of the legislature to repeal [is]

clear and manifest”). But as just shown above, far

from expressing a “clear and manifest” intention to

repeal Section 338, both the 1962 and 1974 acts

indicated a clear intention not to repeal it.

From the 1970s to the present day, numerous

courts, Congressmen, and congressional publications

have consistently recognized Section 338 as operative

and in-effect. For example:

•

In

1971,

the

Federal

Circuit’s

predecessor court recognized as operative “the

provision in section 338, Tariff Act of 1930, 19

U.S.C. § 1338, for retaliatory duties.” United

States v. Hammond Lead Products, Inc., 440

F.2d 1024, 1029 (C.C.P.A. 1971).

•

In 1980, the Ninth Circuit cited Section

338, 19 U.S.C. § 1338, as a currently operative

statute conferring tariff-setting powers on the

President. See Cornet Stores v. Morton, 632

F.2d 96, 100 n.3 (9th Cir. 1980).

•

In 1982, a Senate committee report

described Section 338 as currently operative.

See S. Rep. No. 97-564, 97th Cong. 2d Session,

H.R. 4566 (Sept. 21, 1982) (“Under section 338

the President is authorized to impose

additional duties ….”).

•

In 2016, the non-partisan Congressional

Research Service included Section 338 in a “list

of sample statutory provisions that delegate

some authority to the President to take traderelated action.” See CONGRESSIONAL RESEARCH

SERVICE, Presidential Authority over Trade:

13

Imposing Tariffs and Duties 3-4 (Dec. 9, 2016),

https://www.congress.gov/crs-product/R44707.

•

In March 2025, a bill was introduced in

the House of Representatives (but not passed)

to repeal Section 338. See Repealing Outdated

and Unilateral Tariff Authorities Act, 119 H.R.

2464 (Mar. 25, 2025). Indeed no fewer than 10

(failed) bills to repeal or amend Section 338

have been introduced in the House and Senate

over the last eight years. See, e.g., 119 H.R.

2842 (Apr. 10, 2025); 119 S. 348 (Jan. 30, 2025);

118 H.R. 2549 (Apr. 10, 2023); 118 S. 1060

(Mar. 29, 2023); 117 H.R. 2618 (Apr. 16, 2021);

117 S. 691 (Mar. 10, 2021); 116 H.R. 723 (Jan.

23, 2019); 115 H.R. 5760 (May 10, 2018); 115

H.R. 5281 (Mar. 14, 2018); 115 S. 177 (Jan. 20,

2017). Every such bill testifies to legislators’

continuing understanding that Section 338

remains operative.

•

In April of this year, the Congressional

Research Service published another report

recognizing Section 338 as one of several

statutes “currently in effect” conferring tariffsetting

powers

on

the

President.

CONGRESSIONAL

RESEARCH

SERVICE,

Congressional and Presidential Authority To

Impose Import Tariffs 1, 19-20 (Apr. 23, 2025)

(emphasis added), https://www.congress.gov/

crs-product/R48435.

•

In its opinion below, the District Court

for the District of Columbia stated that “Section

338 of the Tariff Act of 1930 grants the

President the authority to ‘declare new or

additional duties’ of up to 50 percent.”

Learning Res., Inc., 2025 U.S. Dist. LEXIS

14

103492, at *25. The court did not say that

Section 338 “granted” the President tariffsetting power; the court said that Section 338

“grants” him that power.

•

In the Federal Circuit proceedings

below, an amicus brief submitted to by 191

Members of Congress recognized Section 338 as

currently in effect. (See CAFC ECF No. 103 at

9 (“President is authorized” to set tariffs under

Section 338).)

•

As of July 4, 2025, Congress has

compiled a complete, as-amended, currently-ineffect version of the Tariff Act of 1930, with

notations as to which former provisions have

been repealed. See Tariff Act of 1930 As

Amended Through P.L. 119–21, Enacted July

4, 2025, https://www.govinfo.gov/content/pkg/

COMPS-8183/uslm/COMPS-8183.xml.

The

compilation shows some thirty sections of the

Tariff Act of 1930 as having been “repealed,”

but Section 338 is shown unrepealed,

unamended, and fully effective. See id.

•

Finally, the en banc Federal Circuit

itself, in its opinion below, stated that “section

338 of the Tariff Act of 1930 permits the

President to ‘specify and declare new or

additional duties.’ 19 U.S.C. § 1338(a).” (Pet.

App. 27a (cleaned up).) Again, the Federal

Circuit did not say that Section 338 “permitted”

the President to impose tariffs; the court said it

“permits” him to do so.

As stated above, implicit repeal cannot be found

in the absence of a “clear and manifest” congressional

intent to repeal. Maine Community, 590 U.S. at 315.

15

It would be absurd to assert the existence of a “clear

and manifest” congressional intent to repeal Section

338 when no one has ever been aware of this intent,

when the supposedly repealing statutes indicate an

intention not to repeal Section 338, and when courts,

Congressmen, and authoritative congressional

reporters all believe Section 338 is still in force.

C. Under Section 338, the President was

not required to publish or recite any

factual findings in his Executive Orders.

Although (as explained below) the Executive

Orders at issue here did in fact set forth the findings

necessary to trigger the President’s tariff-setting

power under Section 338, that provision did not

require him to do so. Section 338 authorizes the

President to set tariffs “whenever he finds as a fact”

that foreign countries are placing “burdens” or

“disadvantages” on U.S. commerce; it does not require

him to proclaim those findings, to recite them in his

Executive Order, to publish them in any way, or to

disclose the basis thereof.

This omission was no accident. On the contrary,

to protect the confidentiality of the President’s foreign

policy decisionmaking, Section 338 investigations into

other countries’ discrimination against U.S.

commerce were historically “conducted under cover of

secrecy.” 7 As the U.S. Tariff Commission reported,

“[h]earings are neither required nor contemplated by

7 19 C.F.R. § 201.1 (1961).

16

section 338,” 8 and fact-finding under that provision

was not “ma[d]e public.” 9

Where (as here) a statute requires the

President to make certain findings as a precondition

for taking action, without expressly obliging the

President to make those findings public, the President

is not required to “aver the facts” that trigger his

authority or to include his findings in his Executive

Order. See, e.g., Martin v. Mott, 25 U.S. 19, 33 (1827)

(rejecting argument that “it is necessary to aver the

facts which bring the exercise [of power] within the

purview of the statute”). As this Court stated over a

century ago, citing Martin v. Mott:

in all [cases] in which a statute gives a

discretionary power to an officer, to be

exercised by him upon his own opinion of

certain facts, he is made the sole and exclusive

judge of the existence of those facts, and no

other tribunal, unless expressly authorized by

law to do so, is at liberty to reexamine or

controvert the sufficiency of the evidence on

which he acted.

Japanese Immigrant Case, 189 U.S. 86, 98 (1903)

(citation omitted); see also, e.g., United States v.

George S. Bush & Co., 310 U.S. 371, 380 (1940)

(upholding tariff set by presidential proclamation

under another provision of the Tariff Act of 1930)

(“For the judiciary to probe the reasoning which

underlies this Proclamation would amount to a clear

invasion of the legislative and executive domains.

Under the Constitution it is exclusively for Congress,

Fifteenth Annual Report of the United States Tariff

Commission, at 111 (1930–1931).

9 Twenty-fifth Annual Report of the United States Tariff

Commission, at 43 (1940–1941).

8

17

or those to whom it delegates authority, to determine

what tariffs shall be imposed.”).

Instructive here is American Federation of

Gov’t Emps., AFL-CIO v. Reagan, 870 F.2d 723 (D.C.

Cir. 1989). In American Federation, relying on this

Court’s decision in Martin v Mott, the D.C. Circuit

expressly rejected a claim that an Executive Order

was “legally ineffective because it does not show

facially and affirmatively that the President

made the determinations upon which exercise of

the power is conditioned.” 870 F.2d at 724

(emphasis added). The district court in that case had

so held, but the D.C. Circuit reversed, stating, “The

Act does not itself require or even suggest that any

finding be reproduced in the order.” Id. at 728. In

persuasive language directly applicable here, the

appellate court explained:

Section 7103(b)(1) makes clear that the

President may [take action] whenever he

“determines” that the conditions statutorily

specified exist. That section does not

expressly call upon the President to insert

written findings into an … order, or indeed

to utilize any particular format for … an

order. The District Court, by mandating a

presidential demonstration of compliance

with the section, engrafted just such a

demand onto the statute.

Id. at 727 (emphasis added).

By contrast to Section 338, many statutes do

expressly require the President to proclaim the

requisite findings and/or to explain his findings to

Congress. See, e.g., 7 U.S.C. § 624(d) (authorizing

President to take certain actions “whenever he finds

and proclaims” specified facts) (emphasis added); 15

18

U.S.C. § 715c (“[w]henever the President finds

[certain facts], he shall by proclamation declare

such facts”) (emphasis added); 19 U.S.C. § 1862(c)(2)

(requiring President to submit to Congress “a written

statement of the reasons why the President has

decided to take action”).

Section 338 contains no such requirements.

Thus under Martin v. Mott and the numerous other

decisions cited above, Section 338 does not require the

President to “aver” or include in his Executive Orders

any predicate facts. See also, e.g., Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971)

(upholding executive action made without formal

findings where statute authorized executive action

only on certain conditions); Philadelphia & T. Ry. v.

Stimpson, 39 U.S. (14 Pet.) 448, 458 (1840) (where

statute required certain conditions to be met before

corrected patent could issue, patent signed by

President was valid despite absence of recitals so

indicating on face of patent).

D. The challenged tariffs are expressly

authorized by Section 338, and the

Executive Orders at issue here did in fact

sufficiently set forth the relevant

findings.

All or almost all of the tariffs enjoined below fit

Section 338 like a glove. Those tariffs were adopted

to counter what the President determined to be

significant

burdens,

disadvantages,

and

discriminations imposed on U.S. commerce by other

countries’ tariffs and non-tariff actions. Although, as

just shown, the President was not required to include

in his Executive Orders any findings of burden,

19

disadvantage, and discrimination

commerce, he did in fact do so.

against

U.S.

1. The worldwide and reciprocal

tariffs are squarely covered by

Section 338.

On April 2, 2025, the President issued

Executive Order 14257, announcing a 10

percent tariff on “all imports from all trading

partners,” and additional “reciprocal” tariffs for 57

countries ranging from 11 percent to 50

percent. 10 These worldwide and reciprocal tariffs are

squarely covered by Section 338.

Executive Order 14257 expressly declares that

tariffs are necessary because “disparate tariff rates

and non-tariff barriers” placed on U.S. goods by the

affected countries “make it harder for U.S.

manufacturers to sell their products in foreign

markets,”

“while

artificially

increasing

the

competitiveness of the [targeted countries’] goods in

global markets.” 11 The Order discusses in detail WTO

data for countries around the world showing much

higher tariffs being imposed against U.S. goods than

the U.S. charges against foreign goods. In addition,

the Order further cites the “2025 National Trade

Estimate Report on Foreign Trade Barriers,” which

(as the Order correctly states) “details a great number

10 Executive Order 14257, Regulating Imports With a Reciprocal

Tariff to Rectify Trade Practices That Contribute to Large and

Persistent Annual United States Goods Trade Deficits, 90 Fed.

Reg. 15041, 15045 (Apr. 2, 2025).

11 Id. at 15042.

20

of non-tariff barriers to U.S. exports around the world

on a trading-partner by trading-partner basis.” 12

Thus Executive Order 14257 incorporated by

reference the findings set forth in the WTO’s detailed

tariff data and in the NTE’s almost 400-page countryby-country description of non-tariff barriers to U.S.

commerce. At the same time, with respect to

European nations, President Trump has stated, “The

European Union, which was formed for the primary

purpose of taking advantage of the United States on

TRADE, has been very difficult to deal with. Their

powerful trade barriers, VAT taxes, ridiculous

corporate penalties, non-monetary trade barriers,

monetary manipulations, unfair and unjustified

lawsuits against Americans companies, and more,

have led to a trade deficit with the U.S. of more than

$250,000,000.” 13

Accordingly, the worldwide and reciprocal

tariffs announced in Executive Order 14257 are based

on presidential findings of exactly the kind specified

by Section 338 of the Tariff Act of 1930—i.e., findings

that the affected countries are imposing “burdens”

and “disadvantages” on U.S. commerce through

discriminatory tariff and non-tariff restrictions,

regulations, and practices.

While the President briefly imposed on China

tariffs higher than 50% (in excess of the duties

permitted by Section 338), those higher tariffs are not

currently in effect, and the worldwide, reciprocal

12 Id. at 15042-43.

13 Trump Agrees to Extend Deadline After Threatening E.U. With

50% Tariff, With Talks Set to ‘Begin Rapidly’, Time, May 25,

2025,

https://time.com/7288483/trump-european-union-tariffthreat-trade-war-concerns.

21

tariffs are all within the Section 338 limit. In

addition, while Section 338 refers to a 30-day period

between proclamation and collection of tariffs, see 19

U.S.C. § 1338(d), all of President Trump’s worldwide

country-specific reciprocal tariffs (except those on

China) were paused for at least 30 days. See V.O.S.

Selections, Inc. v. United States, No. 25-00066, 2025

Ct. Intl. Trade LEXIS 67, at *18 (C.I.T. May 28, 2025).

2. The trafficking tariffs are also

covered by Section 338.

On February 1, 2025, President Trump issued

three Executive Orders announcing tariffs on goods

from (respectively) Canada, Mexico, and China, in

response to those countries’ practices enabling and

assisting the trafficking of illegal narcotics into the

United States. 14 Currently these “trafficking tariffs”

(enjoined by the court below) are set at 25 percent for

most Mexican and Canadian products and 20 percent

for Chinese products. V.O.S. Selections, 2025 Ct. Intl.

Trade LEXIS 67, at *17.

All three Executive Orders explain that tariffs

are needed because the cross-border drug traffic at

issue—enabled or promoted by the countries in

question—is causing widespread fatalities in the U.S.

population and “putting a severe strain on [America’s]

14 Executive Order 14193, Imposing Duties to Address the Flow

of Illicit Drugs Across Our Northern Border, 90 Fed. Reg. 9113,

9114 (Feb. 1, 2025) (Canada); Executive Order 14194, Imposing

Duties to Address the Situation at Our Southern Border, 90 Fed.

Reg. 9117, 9118 (Feb. 1, 2025) (Mexico); Executive Order

14195, Imposing Duties to Address the Synthetic Opioid Supply

Chain in the People's Republic of China, 90 Fed. Reg. 9121, 9122

(Feb. 1, 2025).

22

healthcare system.” Needless to say, drug-caused

deaths and severe strain on the healthcare system

impose serious burdens on U.S. commerce. As stated

above, Section 338 empowers the President to impose

tariffs not only in response to another country’s

customs duties, but also when the President

determines “that any foreign country places any

burden … on United States commerce” “directly or

indirectly, by law or administrative regulation or

practice, by or in respect to any … prohibition.” 19

U.S.C. § 1338(a), (d) (emphasis added). Because the

trafficking tariffs target countries the President has

found to be “indirectly” causing a “burden” on U.S.

commerce, those tariffs also fall within the ambit of

Section 338.

Conclusion

For the foregoing reasons, Amicus respectfully

urges the Court to carefully consider Section 338 of

the Tariff Act of 1930, 19 U.S.C. § 1338, and to uphold

the challenged tariffs thereunder or to vacate and

remand with instructions to determine which of the

challenged tariffs are covered by Section 338.

Dated: September 23, 2025

Respectfully submitted,

_____________________________

MICHAEL J. JONES

Counsel of Record

Bar. No. 186971

Ivey, Barnum & O’Mara LLC

170 Mason St.

23

Greenwich CT 06830

203-912-9007

mjones@ibolaw.com

JED RUBENFELD

127 Wall St.

New Haven CT 06511

ALAN DERSHOWITZ

Of Counsel

2255 Glades Rd.

Boca Raton FL 33431

24