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

Supreme Court briefOct 8, 2025

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Text

Nos. 24-1287 & 25-250

In the

Supreme Court of the United States

-------------LEARNING RESOURCES, INC., ET AL.,

Petitioners,

DONALD J. TRUMP, PRESIDENT OF THE UNITED

STATES ET AL.,

Respondents.

________________

DONALD J. TRUMP, PRESIDENT OF THE UNITED

STATES ET AL.,

Petitioners,

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 AMICUS CURIAE

CONSUMER WATCHDOG IN SUPPORT OF

PETITIONERS IN 24-1287 AND

RESPONDENTS IN 25-250

__________________________________

October 8, 2025

Alan B. Morrison

Counsel of Record

2000 H Street NW

Washington D.C. 20052

202 994 7120

abmorrison@law.gwu.edu

Additional Counsel on Inside Cover

R. Will Planert

Donald B. Cameron

MORRIS, MANNING & MARTIN, LLP

1333 New Hampshire Avenue,

Suite 800

Washington D.C. 20036

202 216 4819

Harvey Rosenfield

William Pletcher

Benjamin Powell

CONSUMER WATCHDOG

6330 San Vicente Blvd. Ste. 250

Los Angeles, CA 90048

310 392 0522

Counsel for the Amicus

TABLE OF CONTENTS

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

INTRODUCTION AND SUMMARY OF

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

ARGUMENT .......................................................... 7

I. THE COURT SHOULD HOLD THAT, IF

IEEPA ALLOWS THE PRESIDENT TO

IMPOSE TARIFFS, THE STATUTE

UNCONSTITUTIONALLY DELEGATES

LEGISLATIVE AUTHORITY TO THE

PRESIDENT. ...................................................... 7

A. Consumers’ Research Applies Fully to

These Tariffs. .................................................. 8

B. IEEPA Fails the Intelligible Principle

Test Set Forth in Consumers’ Research ....... 12

C. Prior Delegation Statutes Contained

Concrete Limits Absent Here ....................... 23

CONCLUSION ..................................................... 31

ADDENDUM........................................................ 1a

TABLE OF AUTHORITIES

Cases

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935) .......................................... 29

Am. Inst. for Int’l Steel v. United States,

806 Fed. Appx. 982 (Fed. Cir. 2020), cert.

denied, 141 S. Ct. 133 (2020) ........................... 26

Am. Inst. for Int’l Steel v. United States,

376 F. Supp. 3d 1335 (Ct. Int’l Trade 2019) ... 27

American Power & Light Co. v. SEC,

329 U.S. 90 (1946) ............................................ 13

Cargo of Brig Aurora v. United States,

7 Cranch 382 (1813) ......................................... 29

FCC v. Consumers’ Research,

145 S. Ct. 2485 (2025) .. 5-9, 11-20, 23, 25, 27, 29

Federal Energy Administration v. Algonquin SNG,

Inc.,

426 U.S. 548 (1976) .........................23, 25, 26, 27

Franklin v. Massachusetts,

505 U.S. 788 (1992) .......................................... 13

Gregory v. Ashcroft,

501 U.S. 452 (1991) .......................................... 30

INS v. Chadha,

462 U.S. 919 (1983) .................................... 14, 22

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

276 U.S. 394 (1928) ...........................5, 23, 24, 25

Loving v. United States,

517 U.S. 748 (1996) ............................................ 9

LLL

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) .................................... 24, 25

Mistretta v. United States,

488 U.S. 361 (1989) .............................. 16, 27, 28

OPP Cotton Mills, Inc. v. Administrator of Wage

and Hour Div., Dept. of Labor,

312 U.S. 126 (1941) .......................................... 13

Panama Refining Company v. Ryan,

293 U.S. 388 (1935) .......................................... 29

Robertson v. Seattle Audubon Soc’y,

503 U.S. 429 (1992) ............................................ 2

Skinner v. Mid-America Pipeline Co.,

490 U.S. 212 (1989) ..................................... 11-12

United States v. Curtiss-Wright Export Corp.,

299 U.S. 304 (1936) .................................... 10, 29

United States v. Lopez,

514 U.S. 549 (1995) .......................................... 30

United States v. Mazurie,

419 U.S. 544 (1975) ......................................... 8-9

United States v. Yoshida Int’l, Inc.,

526 F.2d 560 (C.C.P.A. 1975) .................... 26, 29

Whitman v. American Trucking Ass’ns,

531 U.S. 457 (2001) ......................... 10-12, 26, 28

Yakus v. United States,

321 U.S. 414 (1944) .......................................... 18

Zemel v. Rusk,

381 U.S. 1 (1965) .............................................. 29

Zivotofsky v. Kerry,

576 U.S. 1 (2015) .................................... 9, 10, 29

U.S. Constitution

U.S. CONST., art. I .................................... 2, 14, 23

U.S. CONST., art. II ........................................... 8-9

U.S. CONST., art. II, § 3...................................... 10

U.S. CONST., art. I, § 8 ................................... 8, 10

Statutes

Pub. L. No. 99-93, Sec. 801 (1985)....................... 22

Pub. L. No. 118-3 (2023), 137 Stat. 6 .................. 21

18 U.S.C. §§ 3551–3586 ....................................... 27

19 U.S.C. § 1862 ....................................... 25, 26, 27

42 U.S.C. § 7408 ................................................... 28

42 U.S.C. § 7409(b)(1) .......................................... 28

47 U.S.C. § 254 ..................................................... 15

47 U.S.C. § 402 ..................................................... 13

50 U.S.C. §§ 1701-1710 .......................................... 2

Other Authorities

Executive Order 14245 (Mar. 24, 2025) ................ 4

Trump, Donald (@realDonaldTrump), Truth

Social (Apr. 5, 2025, 8:34 A.M.) ......................... 6

INTEREST OF THE AMICUS CURIAE1

The amicus curiae Consumer Watchdog is a

non-profit,

non-partisan

public

interest

organization dedicated to protecting consumers

from economic harm caused by unfair market

practices, corporate abuses, and improper

governmental actions. Consumer Watchdog has a

special interest in these cases because the

challenged tariffs function as a regressive tax that

disproportionately burdens working families and

economically vulnerable consumers. Tariffs of the

magnitude at issue here inevitably raise consumer

prices and threaten the economic security of

working families and small businesses. Amicus

filed similar briefs to this brief in both courts below,

focusing on the constitutional nondelegation issue.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Despite the effort of the Solicitor General in

his brief to debate the merits of the President’s

tariff policy, the question before this Court is not

whether the tariffs are a good or bad idea, but

whether any President has the legal authority to do

what this President did. Amicus agrees with the

courts below that the President lacks the statutory

authority to impose the tariffs at issue here. It is

submitting this brief to demonstrate that, even if

Pursuant to Rule 37.6, amicus states that no party, counsel

for any party, or any person other than amicus and its counsel

authored this brief or made any monetary contribution for its

preparation or submission.

the President had the authority to issue tariffs

under the International Emergency Economic

Powers Act, 50 U.S.C. §§ 1701-1710 (IEEPA), these

tariffs would still be invalid. This is because, as so

construed, IEEPA would violate the constitutional

prohibition in Article I on Congress delegating

legislative authority to the Executive Branch. This

serious constitutional question triggers the canon

of constitutional avoidance (which the Government

never mentions). “As between two possible

interpretations of a statute, by one of which it

would be unconstitutional and by the other valid,

[a court’s] plain duty is to adopt that which will

save the act.” Robertson v. Seattle Audubon Soc’y,

503 U.S. 429, 441 (1992) (brackets and citation

omitted). Read that way, IEEPA excludes tariffs. If,

however, the Court concludes that IEEPA grants

the President the authority to impose the tariffs at

issue in this case, then the Court should hold this

to be an unconstitutional grant of legislative

authority in violation of the nondelegation doctrine

and the separation of powers established in the

Constitution.

This Court has not struck down a statute on

delegation grounds since 1935. But it also has

never encountered a law like IEEPA as applied to

the imposition of tariffs. Based only on the

Government’s framing, the reader would have no

idea of the breadth of the delegation that Congress

purportedly gave the President and the absence of

any constraints on his authority under IEEPA:

There is no investigation, report, or other

process that the President or an agency

that reports to him must follow before the

President decides to impose a tariff.

There are no limits in terms of dollars or

percentage increases for new or additional

tariffs.

Tariffs may be imposed on goods for which

there are no tariffs or for which Congress

already has fixed tariffs.

There is no requirement for an expiration

date for any tariff.

Tariffs may be imposed on a single

product or on as many products as the

President desires, including products

which the United States does not produce

(e.g., bananas and coconuts).

The President may impose a tariff for any

reason or no reason, as long as he asserts

it is in response to a declared emergency.

The President may turn a tariff off at any

time and then turn it back on, solely

within his discretion.

The President may exempt whole

countries entirely (as he has done for

Russia) or exempt them from some tariffs

and not others.

The President may impose higher tariffs

for the same products from some

countries than from others and may

exempt some countries for a specific

product only.

The President may override the United

States–Mexico–Canada Agreement that

was approved by Congress in December

2019 and that was signed and negotiated

by President Trump himself during his

prior term as President.

The President may set up an exception

process by which importers may obtain

exemptions or reduced tariffs based on

criteria solely determined by the

President or one of his agencies.2

Tariffs

may

made

effective

immediately even for those products for

which contracts are already in place.

There is no substantive judicial review of

any of the foregoing determinations

provided by any statute. And if there

were, there is nothing in IEEPA that

would enable a court to determine

whether the President has complied with

its non-existent directives or limitations.

2 For example, Section 2(b) of Executive Order 14245 (Mar.

24, 2025) authorizes the Secretary of State, in consultation

with other Cabinet officers, to “determine in his discretion

whether the tariff of 25 percent will be imposed on goods from

any country that imports Venezuelan oil, directly or

indirectly, on or after April 2, 2025.”

Two other facts about these tariffs illustrate the

immense power that the President claims that

IEEPA silently gives him. As of September 23,

2025, according to the Trump administration itself,

it has collected nearly $90 billion in tariffs.3 With

billions more coming in each month, the

Congressional Budget Office estimates that the

revenue “will reduce the national deficit by $4

trillion in upcoming years” (US Br. 11). Second, as

the chart in the Addendum to this brief shows, as a

result of the twenty-three separate Executive

Orders issued between January 20, 2025 and

September 30, 2025, these tariffs have come on and

come off, and rates fluctuated up or down, with

ever changing rationales and exceptions, with no

ties to any limits or conditions in IEEPA – and

everything determined by the unfettered choices of

the President. That is not law in our constitutional

system.

This Court’s ruling in FCC v. Consumers’

Research, 145 S. Ct. 2482 (2025), makes clear that

IEEPA’s unbounded grant of power to impose

tariffs on any product, in any amount, for any

duration, and with such exceptions as the

President chooses, fails the “intelligible principle”

test set forth in J.W. Hampton, Jr., & Co. v. United

States, 276 U.S. 394 (1928), and is therefore

unconstitutional. In determining whether the

delegation to the FCC was lawful, the Court

focused on three separate inquiries: (1) “the degree

of agency discretion that is acceptable varies

3 “Trade Statistics,” U.S. Customs and Border Protection,

available at https://www.cbp.gov/newsroom/stats/trade (last

updated on Sept. 23, 2025).

according to the scope of the power congressionally

conferred”; (2) whether there are “boundaries [on

the] delegated authority”; and (3) whether

“Congress has provided sufficient standards to

enable both ‘the courts and the public [to] ascertain

whether the agency’ has followed the law.”

Consumers’

Research

2497.

If there is tariff-granting authority in IEEPA,

it does not come close to satisfying any of these tests.

As to the scope of the power claimed, the

Government’s brief clearly lays out the magnitude of

the impact of these tariffs and fully justifies

President Trump’s description of them as an

“economic revolution.”4 Second, IEEPA, as the

Government construes it, supplies (1) no ex-ante

standards limiting who or what may be tariffed, (2)

no temporal constraints, and (3) no reviewable

benchmarks for courts to enforce. The statute’s

silence on rate, base, duration, and discrimination is

total. Third, there is no judicial review provision in

IEEPA or elsewhere, and if there were, the courts

would have nothing to review because there are no

limits in the statute that a President could be found

to have violated.

Two other facts about the decision in

Consumers’ Research make its impact on these

cases even more compelling. In the course of

defending the statute at issue there, the Trump

Administration supported the majority’s three

4 Donald Trump (@realDonaldTrump), Truth Social (Apr. 5,

2025,

8:34

A.M.),

https://truthsocial.com/@realDonaldTrump/posts/114285375

813275308.

conditions as necessary to save the statute from a

claim of unconstitutional delegation to the FCC.

The Government did this most clearly in its reply

brief and at oral argument in Consumers’ Research.

Second, even the three dissenting Justices

did not disagree with the majority’s formulation of

the three conditions. Rather, they concluded that

the FCC statute, which had many more limitations

than does IEEPA and expressly provided for

judicial review of the challenged actions, did not

satisfy the constitutional requirements.

ARGUMENT

THE COURT SHOULD HOLD THAT, IF

IEEPA ALLOWS THE PRESIDENT TO

IMPOSE TARIFFS, THE STATUTE

UNCONSTITUTIONALLY DELEGATES

LEGISLATIVE AUTHORITY TO THE

PRESIDENT.

There are two questions presented in these

cases: whether IEEPA allows the President to

impose tariffs, and if so, whether Congress has

sufficiently set the boundaries for those tariffs.

The fact that there is a serious question about the

President’s statutory authority, with eleven out of

fifteen federal judges agreeing that he does not

have it, distinguishes this case from every other

nondelegation challenge in this Court where the

power to act was clear, and the only issue was

whether Congress had included sufficient

guardrails to cabin that power. The necessity to

address the first question should serve as a

flashing signal that Congress has not met the

intelligible principle test established by the Court

because, with no clear grant of authority, there is

virtually no chance that the unstated authority will

be limited as the Constitution requires.

A. Consumers’ Research Applies Fully

to These Tariffs.

In an effort to avoid the clear requirements

of Consumers’ Research, the Government argues

that the nondelegation doctrine does not apply, or

that it applies with less rigor, where the

President’s powers relating to foreign affairs are

challenged. (US Br. 5, 22). Whatever force that

argument may have in other circumstances, it

cannot save this delegation.

First and foremost, this is not an instance in

which the President is exercising his Article II

foreign affairs powers. Article I, Section 8 of the

Constitution assigns “the Power To lay and collect

Taxes, Duties, Imposts and Excises” to Congress,

not the President. Therefore, this is not a situation

in which Congress has granted “the President

broad powers to supplement his Article II

authority” (US Br. 21) for the President has no

authority to impose tariffs. Repeated assertions

that the President has “independent Article II

authority” to impose tariffs (US Br. 44) do not alter

the Constitution.

The

Government

argues

that

“constitutional

‘limitations’

Congress’s

authority to delegate are thus ‘less stringent in

cases where the entity exercising the delegated

authority itself possesses independent authority

over the subject matter.’” (US Br. 44) (quoting

United States v. Mazurie, 419 U.S. 544, 556-557

(1975)) (delegation to tribal authority). But any

greater leeway in delegations to the President

must be limited to areas where the Constitution

specifically assigns the President the responsibility

to carry out the covered function, such as his role

as Commander in Chief. Loving v. United States,

517 U.S. 748, 768-69, 772-74 (1996).

Similarly, a more relaxed standard might be

appropriate if, as in Zivotofsky v. Kerry, 576 U.S. 1,

5, 32 (2015), the foreign affairs power was truly at

issue (there the treatment of Jerusalem by the

United States) and it belonged exclusively to the

Executive Branch. As Justice Kavanaugh observed

in his Consumers’ Research concurrence, any

greater leeway on delegations to the President

should apply where he has “independent Article

II authority” or “at least some independent

constitutional power to act even without

congressional authorization.” 145 S. Ct. at 2516.

In any event, a less rigorous review of a power

delegated to the President does not mean no

review, and as shown below the delegation here

does not come close to the standard set forth in

Consumers’ Research.

The dissent below agreed with the

Government, contending that “the tariffs involve

the President’s role and responsibilities in foreign

affairs (including national security) which has

constitutional foundations (in Article II).” Petition

for Writ of Certiorari, Donald J. Trump v. V.O.S.

Selections Inc. (No. 25-250), at Appendix A 127a

(“App.”). According to the dissent, the role of

Congress is to “furnish[] the President with tools,

such as criminal prohibitions and tariff

impositions” using its Article I powers. Id. at 127a128a. The dissent, however, has it precisely

backwards. The Constitution assigns the tariff

creating power to Congress in Article I, Section 8

and directs the President to implement the laws

creating tariffs as required by the “Take Care”

clause in Article II, Section 3.

Nor does the dicta in United States v.

Curtiss-Wright Export Corp., 299 U.S. 304, 319-20

(1936), help the Government on the question of

whether the standard for Congress’s delegation to

the President in the field of tariffs is less

demanding. As this Court observed in Zivotofsky,

supra, 576 U.S. at 21, in response to the claim that

Curtiss-Wright always supported the President

whenever foreign affairs was at issue, “whether the

realm is foreign or domestic, it is still the

Legislative Branch, not the Executive Branch, that

makes the law.” And to the extent that the

Executive Branch contends that Curtiss-Wright

suggests that the President has vast powers to

which the courts must defer, Zivotofsky made clear

that Curtiss-Wright should not be read that

broadly.

Id.

20-21.

Moreover, the constitutional flaw in

nondelegation cases depends on what Congress

did, or more precisely, did not do. Here, it failed to

provide guardrails to limit the ability of the

President to impose whatever tariffs he pleases.

That is the clear rule from Justice Scalia’s opinion

in Whitman v. American Trucking Ass’ns,

531 U.S. 457, 472 (2001): “In a delegation

challenge, the constitutional question is whether

the statute has delegated legislative power to the

agency,” not what the agency did under the statute.

Nor does it matter in most cases who has

been delegated the authority because, as Justice

Kavanaugh observed in his concurring opinion in

Consumers’ Research, “delegations to executive

officers and agencies, in my view, are not

analytically distinct for present purposes from

delegations to the President because the President

controls, supervises, and directs those executive

officers and agencies.” 145 S. Ct. at 2512, n.1; see

also note 7 infra (citing cases from this Court

applying the intelligible principle test to

delegations to the President). Even the dissent

below agreed: “the nondelegation doctrine polices

what Congress has delegated to another branch,

not to whom it has delegated the authority.” App.

125a (citing Gundy v. United States, 588 U.S. 128,

132 (2019) (plurality opinion)) (emphasis in

original).

That conclusion is firmly supported by other

decisions of this Court. In Skinner v. Mid-America

Pipeline Co., 490 U.S. 212, 222-23 (1989), this

Court rejected the contention that the subject

matter of the delegation affected the standard of

review:

We find no support, then, for Mid–

America’s contention that the text of the

Constitution or the practices of Congress

require the application of a different and

stricter nondelegation doctrine in cases

where Congress delegates discretionary

authority to the Executive under its

taxing power.

And, most recently, Consumers’ Research turned

aside a claim that the level of discretion accorded

by Congress varied depending on whether the

charges were labeled a fee or a tax. 145 S. Ct. at

2497-98.

Accordingly, the delegation here must be

assessed under the standards set forth in

Consumers’ Research.

B. IEEPA

Fails

the

Principle

Test

Set

Consumers’ Research.

Intelligible

Forth

The applicable constitutional nondelegation

test is whether the statute at issue contains an

“intelligible principle” that guides and limits the

President or agency in implementing the statute.

This Court’s decision last term in Consumers’

Research spelled out the three requirements for

Congress to satisfy that test, and IEEPA falls short

on all three. 145 S. Ct. at 2497.

First, quoting Whitman, supra, at 475, the

Court stated that “‘the degree of agency discretion

that is acceptable varies according to the scope of

the power congressionally conferred,’” adding that

the “‘guidance’ needed is greater . . . when an

agency action will ‘affect the entire national

economy’ than when it addresses a narrow,

technical issue (e.g., the definition of ‘country

[grain] elevators’).” 145 S. Ct. at 2497. Given the

magnitude of the impact of these tariffs, and the

President’s characterization of them as an

“economic revolution,” the guidance required for

IEEPA must be at the maximum level, whereas it

has none.

Second, “we have generally assessed

whether Congress has made clear both ‘the general

policy’ that the agency must pursue and ‘the

boundaries of [its] delegated authority.’” Id.

(quoting American Power & Light Co. v. SEC, 329

U.S. 90, 105 (1946)) (emphasis added). As for the

general policy of imposing tariffs under IEEPA, the

statute fails even that quite open-ended

requirement because it does not mention tariffs.

More significantly, IEEPA fails the “boundaries”

requirement because there are no substantive

limits of any kind, as amicus showed above.

Third, the Court recognized the importance

of judicial review: “we have asked if Congress has

provided sufficient standards to enable both ‘the

courts and the public [to] ascertain whether the

agency’ has followed the law.” Id. at 2497 (quoting

OPP Cotton Mills, Inc. v. Administrator of Wage

and Hour Div., Dept. of Labor, 312 U.S. 126, 144

(1941)). All aspects of the FCC program at issue in

Consumers’ Research were fully reviewable under

47 U.S.C. § 402. But there is no provision for

judicial review in IEEPA, and the Administrative

Procedure Act (APA) is unavailable because the

President is not an agency subject to the APA.

Franklin v. Massachusetts, 505 U.S. 788, 800-801

(1992).

Perhaps more significantly, even if the APA

authorized judicial review of whether the

President’s actions conformed to the law, that task

would be impossible to perform because there is no

“law,” i.e., boundaries or limits, in IEEPA that tell

the President either what he must do or what he

may not do. Judicial review is not a constitutional

requirement per se, but rather a means of assuring

that the statutory limits are followed. By doing

that, the courts can satisfy themselves that

Congress has adhered to the principle behind the

nondelegation doctrine: Article I vests the

legislative power in Congress and “that assignment

of power to Congress is a bar on its further

delegation: Legislative power, we have held,

belongs to the legislative branch, and to no other.”

Consumers’ Research, 145 S. Ct. at 2496.

his

concurring

opinion,

Justice

Kavanaugh made the same point about judicial

review, quoting from INS v. Chadha, 462 U.S. 919,

953-54, n.16 (1983): “‘Executive action under

legislatively delegated authority . . . is always

subject to check by the terms of the legislation that

authorized it; and if that authority is exceeded it is

open to judicial review as well as the power of

Congress to modify or revoke the authority

entirely.’” Consumers’ Research, 145 S. Ct at 2513,

n.3.

The challengers in Consumers’ Research

argued that, because there were no numerical

limits on the amount that the FCC could require

the affected entities and ultimately consumers to

pay, the statute violated the nondelegation

doctrine. Id. at 2495. The Court rejected that

argument and instead concluded, after a detailed

analysis of the statute’s many express conditions

and limitations, that Congress had “sufficiently”

confined the agency’s discretion to meet the

constitutional delegation standards. Id. at 2492.

No similar defense would be possible for IEEPA. It

has none of the features of the FCC statute,

47 U.S.C. § 254, that persuaded the majority in

Consumers’ Research to uphold the law where it

concluded that section 254 provided the

meaningful “boundaries” necessary to prevent an

unconstitutional delegation of legislative power to

the FCC: “Congress made clear the parameters of

the programs, and the FCC has operated within

them.” Consumers’ Research, 145 S. Ct. at 2505. In

the course of that discussion, the Court brought in

its judicial review point: “the Commission’s

[statutory] mandate is to raise what it takes to pay

for universal-service programs; if the Commission

raises much beyond, as if it raises much below, it

violates the statute.” Id. at 2502.

The importance of boundaries and judicial

review in Consumers’ Research was not resisted by

the Government. To the contrary, the Government

agreed that the intelligible principle doctrine

places real limits on the authority that Congress

may

confer

the

executive

branch.

“[D]istinguishing lawful conferrals of discretion

from unlawful delegations requires more than just

asking ‘in the abstract whether there is an

‘intelligible principle.’ Congress must delineate

both the ‘general policy’ that the agency must

pursue and the ‘boundaries of th[e] delegated

authority.’” Reply Brief of Federal Petitioners at 3,

FCC v. Consumers’ Research, 145 S. Ct. 2485 (2025)

(citations omitted) (“Reply Br.”).

At oral argument, the Acting Solicitor

General, in response to a question from Justice

Gorsuch asking whether, “in distinguishing

between lawful . . . delegations, that . . . requires

more than asking in the abstract whether there is

an intelligible principle,” replied affirmatively: “We

think . . . to the extent the Court is interested in

looking to past precedents to tighten their reins,

the better approach is not just say, you know, there

is kind of mush for the intelligible principle, look to

past cases, but to look at the parameters I talked

about.” Transcript of Oral Argument at 21-22, FCC

v. Consumers’ Research, 145 S. Ct. 2482 (2025)

(“Consumers’ Research Tr.”).

The problem with the intelligible principle

doctrine standing alone is that it can always be met

at a sufficiently high level of generality. For

example, in Mistretta v. United States, 488 U.S. 361

(1989), the decision to shift from a system in which

judges decided the appropriate sentence on their

own, to one with mandatory guidelines, constituted

an “intelligible principle.” But the Court did not

end its discussion there, and without the other

limitations in the law, discussed infra at 27,

Congress would have authorized the Sentencing

Commission, not Congress, to make scores of policy

decisions with no guard posts to restrain it.

The Government was even more specific on

the need for statutory limits where the

Government is requiring payments from others.

The opening to its reply brief in Consumers’

Research answered the respondents’ charge that

the law created “‘[u]nbounded’ power to levy taxes,

subject at most to ‘precatory’ standards and

‘aspirational’ principles”: “If the Universal Service

Fund really worked that way, the government

would not defend its constitutionality. Congress

may not vest federal agencies with an unbounded

taxing power.” Reply Br. at 1–2 (emphasis added).

In response to respondents’ allegation that the

FCC statute is “too ‘hazy’ or ‘contentless,’” the FCC

replied: “Were these provisions contentless, the

government

would

not

defend

their

constitutionality.” Id. at 11. This was followed by

the Government’s detailed refutation of the claim

that the statute lacks boundaries, in which it

pointed to the many specific ways in which the

agency’s ability to levy assessments was

constrained. Id. at 12–15.

At oral argument, counsel emphasized this

point over and over, referring to various provisions

as “a real limit,” Consumers’ Research Tr. at 7, and

asserting that “we are not arguing for a no limits

at all approach where you can just raise whatever

revenue we feel like . . . there are qualitative limits

that are baked into the statutory scheme, not raise

whatever amount of money; you know, a trillion

dollars.” Id. at 8. The Acting Solicitor General did

not argue that the nondelegation doctrine requires

rigid lines because “obviously there is a judgment

line on how much discretion is too much, but at a

minimum Congress is obviously having to provide

parameters that you can tell, yes or no, did the

agency transgress the boundaries?” Id. at 61.

Perhaps most significant of all, the

Government

recognized

the

constitutional

significance of judicial review in the nondelegation

analysis. After reiterating the importance of

statutory guidance to the agency, it stated that “the

guidance must be ‘sufficiently definite’ to permit

meaningful judicial review of agency action. Gundy

[v. United States, 588 U.S. 128, 158 (2019)]

(Gorsuch, J., dissenting) (quoting Yakus v. United

States, 321 U.S. 414, 426 (1944)).” Reply Br. at 4.

And in defending the delegation in the FCC

statute, the Government emphasized that “Courts

have invalidated FCC action that violates those

requirements.” Id. at 13. As Government counsel

explained, “one of the most important” parameters

to comply with the nondelegation doctrine asks: ‘is

there sufficiently definite and precise language in

the statute to enable Congress, the courts, and the

public to ascertain whether Congress’s rules are

followed?’” Consumers’ Research Tr. at 22

(emphasis added).

Justice Gorsuch followed up by asking

whether judicial review is “possible,” to which

counsel replied “Absolutely.” Id. at 23. Later on,

Justice Gorsuch returned to the same point, asking

if there was judicial review where a party objected

to the use of money as unauthorized by the statute,

and the Government’s response was that “would be

something that someone could challenge.” Id. at

42–43. And if someone objected to the way that the

FCC is interpreting the statute, “you can bring a

challenge to exceeding the scope of the statutory

authority.” Id. at 43.

In this case, however, the Government’s

position on the importance of the availability of

judicial review is rather different. The President

and his lawyers contend that his decisions under

both IEEPA and other trade statutes are not

subject to judicial review because they are

discretionary, and the President is not bound by

the

applicable

statute:

“the

President’s

determinations in this area are not amenable to

judicial review.” US Br. 41-42. Instead, according

to the Government, “IEEPA provides that Congress

and the political process, not the judiciary, serve as

the principal monitor and check on the President’s

exercise of IEEPA authority.” Id. at 4. Leaving it

to Congress to cure nondelegation problems is no

solution since it was Congress’s failure to provide

limits that caused the problem in the first place.

Indeed, assuming that the Government is correct

that these determinations by the President are not

subject to judicial review, that is a near fatal blow

to its effort to save IEEPA from a nondelegation

challenge.

The Government has a further hurdle to

overcome from Consumers’ Research: the dissent

written by Justice Gorsuch and joined by Justices

Thomas and Alito. See 145 S. Ct. at 2519-39. That

dissent reprised and amplified Justice Gorsuch’s

dissent in Gundy, which Chief Justice Roberts

joined. Gundy, supra, 588 U.S. at 149. The

Consumers’ Research dissenters have a stricter, not

a looser, view of nondelegation than the majority.

They would draw a firm line under which a law

imposing a tax would violate the nondelegation

doctrine unless it “prescribed the tax rate” or

“instead opted to cap the total sum the Executive

may collect,” 145 S. Ct. at 2526, and IEEPA does

neither.