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

Supreme Court briefOct 20, 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 FOR THE STATE RESPONDENTS

IN NO. 25-250

_____________

DAN RAYFIELD

Attorney General of Oregon

BENJAMIN GUTMAN

Solicitor General

Counsel of Record

1162 Court Street NE

Salem, Oregon 97301

(503) 378-4402

benjamin.gutman@

doj.oregon.gov

(Additional counsel listed on signature pages)

QUESTIONS PRESENTED

1. Whether the International Emergency Economic

Powers Act (IEEPA), Pub. L. No. 95-223, Tit. II, 91

Stat. 1626, authorizes the tariffs imposed by President

Trump pursuant to the national emergencies declared

or continued in Proclamation 10,886 and Executive

Orders 14,157, 14,193, 14,194, 14,195, and 14,257, as

amended.

2. If IEEPA authorizes the tariffs, whether the statute unconstitutionally delegates legislative authority

to the President.

i

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED ......................................... i

TABLE OF CONTENTS.............................................. ii

TABLE OF AUTHORITIES …………………………...iv

INTRODUCTION ........................................................ 1

STATEMENT............................................................... 2

A. Congress has granted the President limited

authority to adjust tariff rates. .............................. 2

B. For the first time in history, the President

invoked IEEPA to impose tariffs on every U.S

trading partner. ...................................................... 7

C. The lower courts held that IEEPA does not

authorize the President’s tariffs. ........................... 8

SUMMARY OF ARGUMENT ................................... 13

ARGUMENT .............................................................. 15

A. IEEPA does not grant the President the unlimited

tariff power he would need to impose the trade or

trafficking tariffs. ................................................. 15

1. In context, the best reading of “regulate …

importation or exportation” does not include

tariffs. .............................................................. 16

ii

a. No other statute uses comparable terms to

authorize tariffs………….…………………. 17

b. Excluding tariff authority is more

harmonious with the surrounding text..... 21

c. Dictionaries and usage from other contexts

do not show that Congress meant a broader

reading of “regulate.”…. ............................ 25

2. Other statutory interpretation principles

confirm that IEEPA does not authorize

unlimited tariffs. ............................................. 29

a. The breadth and novelty of the power the

President claims counsels against

defendants’ reading of IEEPA. .................. 30

b. Reading IEEPA as authorizing unlimited

tariffs would raise a serious nondelegation

question………………………………………. 38

B. Even if “regulate … importation” included tariffs,

the trade and trafficking tariffs still exceed

IEEPA’s authority. ............................................... 42

1. The trade tariffs are invalid because they

exceed Section 122’s limits. ............................ 42

2. The trade tariffs do not address an “unusual”

or “extraordinary” threat. ............................... 46

3. The trafficking tariffs do not “deal with” the

identified threats............................................. 52

CONCLUSION .......................................................... 56

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Ass’n of Realtors v. Dep’t of Health & Human

Servs.,

594 U.S. 758 (2021) ...................................... 1, 30, 32, 35

Allen v. Wright,

468 U.S. 737 (1984) ...................................................... 55

Biden v. Nebraska,

600 U.S. 477 (2023) .............................. 30, 31, 34, 37, 38

BP P.L.C. v. Mayor & City Council of Baltimore,

593 U.S. 230, 141 S. Ct. 1532, 1541 (2021) ............. 29

City of Grants Pass v. Johnson,

603 U.S. 520 (2024) ...................................................... 48

Dames & Moore v. Regan,

453 U.S. 654 (1981) ...................................................... 54

Erlenbaugh v. United States,

409 U.S. 239 (1972) ...................................................... 16

FCC v. Consumers’ Research,

145 S. Ct. 2482 (2025).................................................. 39

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ...................................................... 55

FDA v. Brown & Williamson,

529 U.S. 120 (2000) ................................................ 11, 32

Federal Energy Administration v. Algonquin SNG,

Inc.,

426 U.S. 548 (1976) .......................................... 19, 20, 21

Feliciano v. Dep’t of Transportation,

145 S. Ct. 1284 (2025).................................................. 16

Gibbons v. Ogden,

22 U.S. (9 Wheat) 1 (1824)............................................ 2

iv

Hamilton v. Dillin,

88 U.S. 73 (1874)........................................................... 36

Harmelin v. Michigan,

501 U.S. 957 (1991) ...................................................... 48

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

276 U.S. 394 (1928) ................................................ 36, 41

Jennings v. Rodriguez,

583 U.S. 281 (2018) ...................................................... 39

Jett v. Dallas Indep. Sch. Dist.,

491 U.S. 701 (1989) ...................................................... 22

King v. Burwell,

576 U.S. 473 (2015) ...................................................... 16

Lackey v. Stinnie,

604 U.S. 192 (2025) ...................................................... 19

Learning Resources, Inc. v. Trump (24-1287)............. 13

Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996) ...................................................... 22

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ...................................................... 36

McGoldrick v. Gulf Oil Corp.,

309 U.S. 414 (1940) ...................................................... 26

McLaughlin Chiropractic Associates, Inc. v. McKesson

Corp.,

606 US 146 (2025) .................................................. 22, 50

Nat’l Cable Television Ass’n v. United States,

415 U.S. 336 (1974) ...................................................... 23

Nat’l Fed’n of Indep. Bus. v. OSHA,

595 U.S. 109 (2022) .................................................. 2, 38

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ................................................ 39, 40

v

Pulsifer v. United States,

601 U.S. 124 (2024) ...................................................... 19

Radzanower v. Touche Ross & Co.,

426 U.S. 148 (1976) ...................................................... 45

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) ...................................................... 38

Simon v. E. Kentucky Welfare Rts. Org.,

426 U.S. 26 (1976) ........................................................ 55

Trump v. CASA, Inc.,

145 S. Ct. 2540 (2025).................................................. 10

United States v. Menasche,

348 U.S. 528 (1955) ...................................................... 54

United States v. Yoshida Int’l, Inc.,

526 F.2d 560 (C.C.P.A. 1975) . 12, 25, 26, 27, 29, 34, 46

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ...................................................... 30

West Virginia v. EPA,

597 U.S. 697 (2022) .......................................... 30, 35, 38

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) ...................................................... 50

Constitutional and Statutes

12 U.S.C. § 5491(a) ........................................................... 18

15 U.S.C. § 78k(a)(2) ........................................................ 18

16 U.S.C. § 460bbb-9(a) ................................................... 18

19 U.S.C. § 1351(c)(1) ...................................................... 21

19 U.S.C. § 1671d(a)(1) ...................................................... 3

19 U.S.C. § 1675(a) ............................................................. 3

19 U.S.C. § 1862(c)(1)(A)–(B) ......................................... 19

19 U.S.C. § 2132(a) ................................................. 4, 43, 44

19 U.S.C. § 2253(a)(1), (3) ............................................... 48

19 U.S.C. § 2253(a)(3)(A) ................................................ 18

vi

19 U.S.C. § 2253(e) ............................................................. 4

19 U.S.C. § 2411(a), (c)(1)(B) .......................................... 49

19 U.S.C. § 2411(c)(1)(B) ................................................. 18

19 U.S.C. § 2417 .................................................................. 4

19 U.S.C. §§ 2111–2114..................................................... 3

19 U.S.C. ch. 22 ................................................................... 3

19 U.S.C. ch. 26 ................................................................... 3

19 U.S.C. ch. 29 ................................................................... 3

20 U.S.C. § 1098bb(a)(1).................................................. 31

21 U.S.C. § 1046(1) ........................................................... 24

21 U.S.C. § 360bbb-2(a) ................................................... 18

22 U.S.C. § 10102(b)(2)(B) .............................................. 51

22 U.S.C. § 287c ................................................................ 51

46 U.S.C. § 4305 ................................................................ 24

49 U.S.C. § 40117(j).......................................................... 18

50 U.S.C. § 1631 ................................................................ 42

50 U.S.C. § 1701 ................................................................ 46

50 U.S.C. § 1701(a) ........................................................... 50

50 U.S.C. § 1701(b) ........................................... 5, 10, 52, 53

50 U.S.C. § 1702(a)(1)(B) ............................................ 1, 22

50 U.S.C. § 1702(a)(1)(C) ................................................ 37

50 U.S.C. § 1702(c) ........................................................... 50

50 U.S.C. §§ 1601 ................................................................ 5

50 U.S.C. §§ 4305 ................................................................ 4

50 U.S.C. 1701 ................................................................... 51

U.S. Const., Art. I, § 8.................................................. 2, 35

U.S. Const., Art. I, § 9...................................................... 22

U.S.C. § 1702(a)(1)(B) ...................................................... 23

Other Authorities

36 Fed. Reg. 15,724 (Aug. 17, 1971) ............................. 44

Black’s Law Dictionary (4th ed. 1968) ......................... 25

vii

Christopher A. Casey & Jennifer K. Elsea, Cong.

Rsch. Serv., R45618,

The International Emergency Economic Powers Act:

Origins, Evolution, and Use (2024) ............................ 6

Curtis Bradley & Jack Goldsmith,

Foreign Affairs, Nondelegation, and the Major

Questions Doctrine,

172 U. Pa. L. Rev. 1742 (2024) ............................ 35, 36

Emergency Controls on International Economic

Transactions, Hearings on H.-R. 1560 and H. R.

2382, 95th Cong., (1977) ............................................. 28

Exec. Order No. 12,532,

50 Fed. Reg. 36,861 (Sept. 9., 1985) ......................... 51

Exec. Order No. 13,818,

82 Fed. Reg. 60,839 (Dec. 20, 2017) .......................... 51

Exec. Order No. 14,059,

86 Fed. Reg. 71,549 (Dec. 17, 2021) .......................... 53

Exec. Order No. 14,193,

90 Fed. Reg. 9113 (Feb. 1, 2025) ................................. 7

Exec. Order No. 14,194,

90 Fed. Reg. 9117 (Feb. 1, 2025) ................................. 7

Exec. Order No. 14,195,

90 Fed. Reg. 9121 (Feb. 1, 2025) ................................. 7

Exec. Order No. 14,257,

90 Fed. Reg. 15,041 (Apr. 2, 2025) .................. 7, 42, 47

Exec. Order No. 14,323,

90 Fed. Reg. 37,739 (July 30, 2025)............................ 8

Exec. Order No. 14,326,

90 Fed. Reg. 37,963, (July 31, 2025)........................... 8

Exec. Order No. 14,329,

90 Fed. Reg. 38,701 (Aug. 6, 2025) ............................. 8

viii

Exec. Order No. 14316,

90 Fed. Reg. 30,823, (July 7, 2025) ............................. 7

Fact Sheet: President Donald J. Trump Addresses the

Threat To National Security From Imports of

Timber, Lumber, and Their Derivative Products,

2025 WL 2754561 (Sept. 29, 2025) ........................... 13

First War Powers Act of 1941,

Pub. L. No. 77-354, § 301, 55 Stat. 839...................... 5

H.R. 116–764 (2019)......................................................... 33

H.R. 119–735 (2025)......................................................... 33

H.R. Rep. No. 95-459 (1977) ............... 5, 27, 28, 47, 48, 49

https://truthsocial.com/@realDonaldTrump/posts/1152

67512131958759. .......................................................... 13

International Emergency Economic Powers Act,

Pub. L. No. 95-223, Tit. II, 91 Stat. 1626 ................. i

Joseph W. Bishop, Jr.,

Judicial Construction of the Trading with the

Enemy Act,

62 Harv. L. Rev. 721 (1949) .......................................... 4

Legislative History of the Wartime or National

Emergencies Presidential Powers

P.L. 95-223 (1977)........................................................... 5

Office of Foreign Assets Control, Venezuela-Related

Sanctions, at

https://ofac.treasury.gov/sanctions-programs-andcountry-information/venezuela-related-sanctions 24

Pub. L. No. 65-91, § 5(b) .................................................... 4

Pub. L. No. 65-91, §§ 1–19, 40 Stat. 411, (1917) .......... 4

Pub. L. No. 87-456, § 103, 76 Stat. 72, 74 ................... 27

Pub. L. No. 87–794, § 201(a)(2), 76 Stat. 872 ............. 20

Pub. L. No. 94-412, 90 Stat. 1255 (1976)....................... 5

ix

Pub. L. No. 95-223, § 101, 91 Stat. 1625 (1977)........... 5

Tariff Act of 1930 § 338 ................................................... 42

Timothy Meyer & Ganesh Sitaraman,

Presidential Regulation,

42 Yale J. on Reg. 803 (2025) ....................................... 2

Trade Act of 1974 § 122 ................................................... 42

Trade Reform: Hearings before the H. Comm on Ways

& Means on H.R. 6767, 93rd Cong (1973) ................ 45

United States Tariff Commission,

Tariff Schedule of the United States Annotated, III–

IV (5th ed. 1970) ........................................................... 27

Webster’s Third New International Dictionary (1961)

........................................................................ 25, 34, 46, 47

x

INTRODUCTION

The question presented is whether Congress delegated to the President, in a statute that does not once

mention tariffs, the “essentially judicially unreviewable” (Br. 21) power to impose tariffs of any rate on any

country at any time. To ask that question is to answer

it. The Framers assigned the tariff power to Congress,

not the President. Congress has delegated authority to

the President to adjust tariff rates in response to discrete, specifically enumerated circumstances. But it always has done so explicitly and subject to intelligible

principles that cabin the President’s authority.

Not satisfied with the scope of those existing authorities, the President purported to discover a new

power to impose unlimited tariffs in an old statutory

provision that gives him authority to “regulate … importation or exportation of” foreign property to deal

with certain threats. 50 U.S.C. § 1702(a)(1)(B). The

“breathtaking” scope and “unprecedented” nature of

that claimed power counsel against accepting defendants’ interpretation. Ala. Ass’n of Realtors v. Dep’t of

Health & Human Servs., 594 U.S. 758, 764–65 (2021).

Context, history, and common sense all support a more

modest understanding of that provision—one that

leaves the President ample tools to address emergencies but does not delegate Congress’s tariffing power

wholesale.

Defendants’ hyperbolic rhetoric obscures what this

case is about. The question is not whether America is

2

a “rich nation” or “poor nation,” whether tariffs are

“country-saving,” or whether without them we are

“declin[ing] into a vassal state.” Br. 2-5. The question

is not whether control over tariff policy would empower

the President to make trade deals or reduce the national deficit. Br. 10–11. The question, as in other recent cases of executive overreach, is: “Who decides?”

Nat’l Fed’n of Indep. Bus. v. OSHA, 595 U.S. 109, 121

(2022) (Gorsuch, J., concurring). Congress, not the

President, decides whether and how much to tax Americans who import goods from abroad. This Court should

reject the President’s bid to seize that power for himself.

STATEMENT

A. Congress has granted the President limited

authority to adjust tariff rates.

1. The Constitution gives Congress—not the President—exclusive “Power To lay and collect Taxes, Duties, Imposts and Excises” and “To regulate Commerce

with foreign Nations[.]” U.S. Const., Art. I, § 8. Tariffs

are taxes on imports—and for all practical purposes,

taxes on Americans who import goods from overseas.

See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 201 (1824)

(“the act of laying ‘duties or imposts on imports’ … is

considered as a branch of the taxing power”); Timothy

Meyer & Ganesh Sitaraman, Presidential Regulation,

42 Yale J. on Reg. 803, 827 (2025) (describing tariffs as

3

“domestic taxes assessed within the United States’s

borders”).

On some matters relating to tariffs, Congress has

specifically authorized the President to act. For example, the President may negotiate trade agreements, including tariff reductions, that Congress then enacts

into law. See 19 U.S.C. §§ 2111–14, 2191 (authorizing

negotiations for certain periods, granting fast-track authority, and setting objectives for trade agreements).

Today, the United States is party to several trade

agreements, negotiated by the President and approved

and implemented by Congress. See, e.g., 19 U.S.C. ch.

22 (implementing the Uruguay Round Agreements); 19

U.S.C. ch. 26 (implementing the Dominican RepublicCentral America Free Trade Agreement); 19 U.S.C. ch.

29 (implementing the United States-Mexico-Canada

Agreement).

For recurring trade issues, such as the dumping of

goods onto markets or other unfair trade practices,

Congress has specifically authorized the President to

adjust tariff rates. In each of those circumstances, Congress required the President to follow specific procedures, make certain findings or determinations, or

limit the duration and magnitude of the adjustments.

See 19 U.S.C. § 1671(a) (limiting countervailing duties

to amount equal to net countervailing subsidy); 19

U.S.C. § 1671d(a)(1) (providing procedures for countervailing duties); 19 U.S.C. § 1673 et seq. (providing limits and procedures for antidumping tariffs); 19 U.S.C.

§ 1675(a) (requiring annual review of antidumping and

4

countervailing duty orders); 19 U.S.C. § 2253(e)

(providing limitations on duties to protect domestic industry); 19 U.S.C. § 2417 (providing procedures for duties imposed in response to burdensome trade practices).

A typical example is Section 122 of the Trade Act of

1974. Section 122 authorizes the President to proclaim

a “temporary import surcharge … in the form of duties”

to “deal with large and serious United States balanceof-payments deficits.” 19 U.S.C. § 2132(a). But Section

122 also limits the duration and size of that surcharge:

“for a period not exceeding 150 days (unless such period is extended by Act of Congress),” and “not to exceed 15 percent ad valorem.” Id.

2. Unlike each of those statutes, the International

Emergency Economic Powers Act (IEEPA) does not

mention “tariffs” or “duties.” It traces its origin to a different statute, the Trading with the Enemy Act

(TWEA), enacted in 1917 to empower the President to

take and use foreign property during World War I. Pub.

L. No. 65-91, 40 Stat. 411 (1917) (codified as amended

at 50 U.S.C. §§ 4305 et seq.); Joseph W. Bishop, Jr., Judicial Construction of the Trading with the Enemy Act,

62 Harv. L. Rev. 721, 723 (1949) (describing purposes).

Section 5(b) of TWEA empowered the President to

“investigate, regulate, or prohibit” “any transactions in

foreign exchange” during wartime. Pub. L. No. 65-91,

§ 5(b). That section did not originally include “importation” among the list of items that could be regulated.

That term was added without explanation in 1941. See

5

First War Powers Act of 1941, Pub. L. No. 77-354,

§ 301, 55 Stat. 839.

By the 1970s, Congress became concerned about expansive use of TWEA and took steps to rein it in. See

Legislative History of the Wartime or National Emergencies Presidential Powers P.L. 95-223, at 5 (1977)

(Chairperson Bingham suggesting that TWEA created

“a dangerous situation in that it virtually conferred on

the President what could have been dictatorial powers

that he could have used without any restraint by the

Congress”). First came the National Emergencies Act

in 1976, which ended all existing emergencies except

those proclaimed under Section 5(b) of TWEA and

placed restrictions on the declaration of new emergencies. Pub. L. No. 94-412, 90 Stat. 1255 (1976), codified

as amended at 50 U.S.C. §§ 1601 et seq. A year later,

Congress amended TWEA to make it applicable only

during times of war. Pub. L. No. 95-223, § 101, 91 Stat.

1625 (1977).

At the same time, Congress crafted IEEPA to provide the President “somewhat narrower” emergency

powers during peacetime. H.R. Rep. No. 95-459, at 1

(1977). IEEPA did not “include authorities more appropriately lodged in other legislation.” Id. at 11.

IEEPA allows the President to exercise those narrower powers “only” to “deal with” an “unusual and extraordinary threat” arising from outside the United

States and “not … for any other purpose.” 50 U.S.C.

§ 1701(b). Among the narrower powers are the power

to “regulate” the “importation or exportation” of “any

6

property in which any foreign country or a national

thereof has any interest”:

(1) At the times and to the extent specified in

section 1701 of this title, the President may, under such regulations as he may prescribe, by

means of instructions, licenses, or otherwise—

***

(B) investigate, block during the pendency of an

investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition,

holding, withholding, use, transfer, withdrawal,

transportation, importation or exportation of, or

dealing in, or exercising any right, power, or

privilege with respect to, or transactions involving, any property in which any foreign country or

a national thereof has any interest by any person, or with respect to any property, subject to

the jurisdiction of the United States[.]

Id. § 1702(a) (emphases added).

In the nearly five decades from its enactment

through January 2024, Presidents declared 69 emergencies invoking IEEPA. See Christopher A. Casey &

Jennifer K. Elsea, Cong. Rsch. Serv., R45618, The International Emergency Economic Powers Act: Origins,

Evolution, and Use 15, 26 (2024). But no President ever

used IEEPA to impose tariffs.

7

B. For the first time in history, the President

invoked IEEPA to impose tariffs on every U.S

trading partner.

Earlier this year, the President invoked IEEPA to

impose tariffs ranging from 10 percent to 145 percent

on most imports worldwide. The tariffs generally fell

into two categories. First, the President imposed tariffs

on most imports from Canada, Mexico, and China

based on his declarations of emergencies regarding fentanyl trafficking and other crime (the “trafficking tariffs”). Exec. Order No. 14,193, 90 Fed. Reg. 9113 (Feb.

1, 2025); Exec. Order No. 14,194, 90 Fed. Reg. 9117

(Feb. 1, 2025); Exec. Order No. 14,195, 90 Fed. Reg.

9121 (Feb. 1, 2025). Second, he imposed tariffs worldwide, including additional tariffs on China, based on

“large and persistent annual U.S. goods trade deficits”

(the “trade tariffs”). Exec. Order No. 14,257, 90 Fed.

Reg. 15,041, 15,041 (Apr. 2, 2025).

Over the following months, the President suspended some tariffs, increased others, and modified the

scope of the exceptions they allow. See Pet. App. 151a–

56a (detailing history). For example, the President imposed 25 percent tariffs on Canada and Mexico on February 1, 2025, but then two days later suspended those

tariffs for four weeks. Id. at 152a–53a. The President

threatened country-by-country trade tariffs of up to 50

percent on April 2, 2025, but suspended them a week

later, leaving only worldwide 10 percent tariffs in effect. Id. at 154a–55a. And for China, the combined tariffs surged from 10 percent (on February 1) to 145

8

percent (on April 10) and then fell back to 30 percent

(on May 12). Pet. App. 155a–56a. As of the time of the

Court of International Trade’s (CIT’s) ruling, the orders subjected most imports from China to a 30 percent

additional tariff rate, most imports from Canada and

Mexico to a 25 percent additional tariff rate, and most

imports from the rest of the world to a 10 percent additional tariff rate. Id. 156a & n.2. The suspended trade

tariffs ultimately went into effect on August 7, 2025,

with rates ranging from 10 percent to 41 percent. Pet.

App. 9a; Exec. Order No. 14,326, 90 Fed. Reg. 37,963,

37,967 (July 31, 2025).

While this appeal was pending, the President also

invoked IEEPA to impose additional tariffs on some

countries. For instance, on July 30, 2025, the President

imposed an additional 40 percent tariff on imports

from Brazil based in part on what the President viewed

as the Brazil Supreme Court’s “misguided[]” ruling

that former President Jair Bolsonaro must stand trial

for criminal charges related to election interference.

Exec. Order No. 14,323, 90 Fed. Reg. 37,739, 37,740

(July 30, 2025). And the President imposed an additional 25 percent tariff on India because it imports Russian oil. Exec. Order No. 14,329, 90 Fed. Reg. 38,701

(Aug. 6, 2025).

C. The lower courts held that IEEPA does not

authorize the President’s tariffs.

The State plaintiffs are 12 States that both import

products directly and purchase goods and supplies imported by others. Pet. App. 165a–66a. In April 2025,

9

the States sued defendants in the CIT, arguing that the

trade and trafficking tariffs were unlawful and seeking

a declaration and injunctive relief to stop the Administration from enforcing them. In a separate case,

V.O.S. Selections v. Trump, a group of businesses sued

defendants in the same court seeking the same relief

solely as to the trade tariffs. The CIT consolidated the

two cases.

1. A three-judge panel of the CIT unanimously

granted summary judgment to the States and businesses. Pet. App. 143a. The court held that IEEPA did

not authorize any of the tariffs that the President had

imposed. Id. at 168a.

First, the court held that the trade tariffs were invalid because IEEPA does “not confer unlimited tariff

authority,” and in particular does not authorize tariffs

that exceed the limits in Section 122 of the Trade Act

of 1974—which, as noted above, limits tariffs that address “large and serious United States balance-of-payments deficits” to 15 percent for 150 days. Pet. App.

172a, 178a. The court concluded that a finding that

IEEPA authorizes “unlimited” tariffs would run afoul

of both the nondelegation canon and the major questions doctrine. Id. at 170a–72a. The court also noted

that Congress meant IEEPA to deal with threats not

addressed in non-emergency statutes. Id. at 175a–77a.

Thus, the court held, the trade tariffs, which were “imposed in response to a balance-of-payments deficit,

10

must conform with the limits of Section 122,” which

they do not. Id. at 180a.

Second, the court held that the trafficking tariffs

were invalid because they do not “deal with” the identified threat of drug trafficking and other crime. Pet.

App. 181a (quoting 50 U.S.C. § 1701(b)). The term “deal

with” requires “a direct link between an act and the

problem it purports to address.” Pet. App. 191a. But

collecting tariffs on lawful imports has no direct link to

stopping illegal drug trafficking. Id. at 191a. Nor is potential leverage in trade negotiations enough to satisfy

the statutory requirement. Id. at 191a–92a.

Based on those conclusions, the court declared the

challenged executive orders invalid and enjoined their

operation. Id. at 200a.

2. The en banc Federal Circuit affirmed the CIT’s

judgment on the merits but vacated and remanded the

injunctive relief for reconsideration in light of Trump

v. CASA, Inc., 145 S. Ct. 2540 (2025). Pet. App. 44a–

45a.

The en banc court concluded that IEEPA did not authorize any of the tariffs that the States had challenged. Although it refrained from “deciding whether

IEEPA authorizes any tariffs at all,” Pet. App. 25a, it

concluded that at a minimum IEEPA does not authorize the trafficking or trade tariffs. It explained that

IEEPA does not use the word “tariff” or “duty,” nor does

any other verb in IEEPA suggest a monetary action or

the power to tax or impose tariffs. Id. at 26a–27a. That

11

“contrasts with statutes where Congress has affirmatively granted” the power to impose or adjust tariffs.

Id. at 27a. And that context shows that “whenever Congress intends to delegate to the President the authority

to impose tariffs, it does so explicitly, either by using

unequivocal terms like tariff and duty, or via an overall

structure which makes clear that Congress is referring

to tariffs.” Id. at 30a. Congress’s failure to do so in

IEEPA provides a strong textual reason to conclude

that IEEPA does not “grant the President unlimited

authority to impose tariffs.” Id.

Confirming that textual conclusion is the major

questions doctrine, which counsels caution before concluding that a statute authorizes executive action of

vast “economic and political significance.” Pet. App.

34a (quoting FDA v. Brown & Williamson, 529 U.S.

120, 159 (2000)). In applying that doctrine, the court

found it significant that no President before now had

used IEEPA to impose tariffs or adjust tariff rates. Pet.

App. 35a. The court rejected the federal government’s

argument that the major questions doctrine carries no

weight when applied to the President or to areas involving foreign policy. Id. at 38a.

Judge Cunningham, joined by Judges Lourie,

Reyna, and Stark, concurred but added that IEEPA’s

plain text does not authorize the imposition of any tariffs. Id. at 48a. Judge Cunningham explained that the

federal government’s reading would require the court

to give multiple meanings to the same word in the

same statutory provision and to attribute to the term

12

“regulate” a meaning that would make many of the

other terms in § 1702(a)(1)(B) superfluous. Pet. App.

50a–52a. Judge Cunningham also rejected the federal

government’s argument that Congress intended to ratify the holding of United States v. Yoshida Int’l, Inc.,

526 F.2d 560 (C.C.P.A. 1975), which interpreted the

phrase “regulate … importation” in TWEA to encompass the imposition of limited surcharges on imports.

Pet. App. 54a–57a. Judge Cunningham likewise suggested that the federal government’s reading of IEEPA

to authorize limitless tariffs would render the statute

an unconstitutional delegation of congressional power.

Id. at 57a–61a.

Judge Taranto, joined by Chief Judge Moore and

Judges Prost and Chen, dissented. In the dissent’s

view, IEEPA authorizes tariffs, and the tariffs at issue

here otherwise satisfied IEEPA’s requirements. Pet.

App. 66a–67a. The dissent concluded that IEEPA empowers the President to impose any tariff at any rate,

regardless of existing statutory limitations, as long as

the President identifies an unusual and extraordinary

threat. Id.

3. The federal government petitioned for certiorari, which the Court granted. The Court also granted

the petition for certiorari before judgment in Learning

13

Resources, Inc. v. Trump (24-1287) and consolidated

the cases for briefing and argument.1

SUMMARY OF ARGUMENT

IEEPA allows the President, during a national

emergency, to “regulate … importation or exportation”

to “deal with an unusual and extraordinary threat.”

The trade and trafficking tariffs fail every one of those

statutory requirements.

First, the best reading in context of “regulate … importation or exportation” does not include tariffs. The

most important context is the many other statutes that

delegate tariffing power to the President, all of which

reference tariffs or duties explicitly. None of them uses

a general phrase like “regulate importation.” Congress

simply does not speak that obliquely when it intends to

delegate its taxing or tariffing power. Instead, it

speaks clearly.

Even if that were not the most natural reading of

the text, basic principles of statutory construction confirm that, at a minimum, IEEPA does not convey the

unlimited tariffing authority that the President claims

here. This Court is properly skeptical when the

In recent weeks, the President has imposed or announced plans

to impose new tariffs under statutes other than IEEPA. See, e.g.,

Proclamation 10.976, 90 Fed. Reg. 48.127 (Sept. 29, 2025) (imposing tariffs on wood products under Section 232). Although those

tariffs are based on concerns about manufacturing and military

readiness, none invoke IEEPA.

1

14

executive branch claims to discover in an old statute a

breathtaking new power to remake the national economy. So even if “regulate … importation” included

some power to adjust tariffs, it would not include the

power to impose trillions of dollars in new tariffs as the

President did here. Constitutional avoidance points

the same way: Defendants’ reading of the statute as

delegating the entirety of Congress’s tariffing authority to the President’s “essentially judicially unreviewable” discretion (Br. 21), with no intelligible principles

guiding the amount or duration of the tariffs, raises serious questions under the nondelegation doctrine.

Those questions are avoided by adopting a less expansive—and more textual—reading of “regulate … importation or exportation.”

Second, even if “regulate … importation” meant

“impose tariffs,” the trade tariffs still exceed IEEPA’s

grant of authority. Elsewhere, in Section 122, Congress

specifically provided authority to address large and serious trade deficits, the purported impetus for the

trade tariffs. Section 122 sets limits on those tariffs,

and those specific limits control over IEEPA’s general

grant of authority. IEEPA itself confirms that, because

it limits the President to dealing with an “unusual and

extraordinary threat.” Trade deficits are not unusual,

because—as the President himself emphasized—they

are persistent. And they are not extraordinary, because Congress enacted specific authority to address

them. Congress intended IEEPA to cover situations

that were not the subject of other legislation, not to

15

override the carefully crafted limits in every other statutory delegation.

Finally, the trafficking tariffs violate IEEPA’s statutory requirement that the President’s actions “deal

with” only the identified threat and not be used “for

any other purpose.” Blunderbuss tariffs on lawful trade

of all goods do not stop illegal drug trafficking or other

crime. Defendants’ only theory is that they give the

President leverage for negotiations, but that is too attenuated to satisfy the statutory requirement. If

merely creating leverage were enough, the only-todeal-with and not-for-any-other-purpose requirements

would be meaningless.

ARGUMENT

A. IEEPA does not grant the President the

unlimited tariff power he would need to

impose the trade or trafficking tariffs.

The power the President claims here is extraordinary: the power to impose tariffs of any rate, on any

country, for any length of time, and for reasons that are

“essentially judicially unreviewable.” Br. 21. That extraordinary claim of power demands extraordinary

proof of congressional intent to confer it. Yet defendants’ effort to ground that power in IEEPA falls far

short. IEEPA’s authority to “regulate … importation or

exportation”—read in context, and in light of historical

practice and common sense—does not mean unchecked

16

power to impose sweeping tariffs on every U.S. trading

partner.

As explained below, the best reading of the statutory text in context, including in light of the separation

of powers and the history of tariff law, is that IEEPA

does not include any delegation of Congress’s tariff

power. But this Court need not decide that question definitively, because at a minimum IEEPA does not convey the unlimited tariff authority claimed by the President here. If IEEPA authorized the President to adjust

tariffs at all, it would not authorize the trillions of dollars of new and varied tariffs at issue in this case.

1. In context, the best reading of “regulate …

importation or exportation” does not

include tariffs.

As in all matters of interpretation, context is crucial. See King v. Burwell, 576 U.S. 473, 486 (2015) (noting that the Court must “read the words in their context” with “a view to their place in the overall statutory

scheme” because the Court’s goal is “to construe statutes, not isolated provisions”) (cleaned up).

The most important context here is other statutory

provisions, because they reflect how Congress in fact

uses statutory terms to convey or not convey authority.

See Feliciano v. Dep’t of Transp., 145 S. Ct. 1284, 1291

(2025) (“compar[ing] the statute before us with other

laws” as a “contextual clue[]”); Erlenbaugh v. United

States, 409 U.S. 239, 243 (1972) (noting that “a legislative body generally uses a particular word with a

17

consistent meaning in a given context”). Defendants all

but ignore that context and instead focus on dictionary

definitions and the use of the term “regulate” in other

settings, like court opinions and treatises. Dictionaries

and opinions are useful in determining what words can

mean. But in the specific context at issue here, Congress’s striking consistency when delegating tariffing

authority provides much more direct evidence of statutory meaning.

When Congress delegates tariffing authority, it

uses an express term like “tariffs” or “duties” in the

statute. When it delegates only authority to “regulate,”

it does not empower the executive branch to impose

new taxes. Congress has never used a phrase like “regulate importation” to cover tariffs. Neither dictionary

definitions nor out-of-context snippets from case law

nor a single lower court decision interpreting IEEPA’s

predecessor show that Congress intended to depart

from its consistent historical practice.

a. No other statute uses comparable terms

to authorize tariffs.

Section 1702(a) of IEEPA, describing a President’s

powers, does not mention “tariffs” or “duties.” That is

the first textual clue that IEEPA does not authorize

tariffs, much less unlimited tariffs. When Congress

empowers the President to impose “tariffs” or “duties,”

it uses those words in the statute. See, e.g., 19 U.S.C.

§ 1671(a) (providing for “countervailing duty” to protect domestic industry against “countervailable subsidy”); 19 U.S.C. § 1673 (providing for a “antidumping

18

duty”); 19 U.S.C. § 2253(a)(3)(A) (authorizing President to “proclaim an increase in, or the imposition of,

any duty on the imported article” to respond to harms

or threats to domestic industry); 19 U.S.C.

§ 2411(c)(1)(B) (authorizing the executive branch to

“impose duties” to respond to certain trade practices or

violations of trade agreements).

Defendants have not pointed to a single statute in

Title 19, which governs the imposition of tariffs and

duties, that uses the phrase “regulate importation” or

anything similar to convey tariff authority. Nor have

they pointed to any other statute that delegates authority to tax through the term “regulate.”

Federal statutes consistently grant explicit authority to tax certain activities separately from authority

to regulate them. See, e.g., 16 U.S.C. § 460bbb-9(a) (describing power to “tax” people, franchises, or property

on lands separately from power to “regulate” the

lands); 49 U.S.C. § 40117(j) (providing that state may

not “tax, regulate, or prohibit” certain passenger facility charges in aviation context). And the U.S. Code contains countless examples of authority to “regulate”

matters that defendants agree do not carry with them

the authority to tax. For example, the CFPB has the

power to “regulate the offering and provision of consumer financial products,” 12 U.S.C. § 5491(a); the

SEC has the power to “regulate … transactions on a

national securities exchange,” 15 U.S.C. § 78k(a)(2);

and the FDA has the power to “regulate” drugs, biological products, and devices, 21 U.S.C. § 360bbb-2(a). No

19

one thinks that those agencies have blanket authority

to tax the products that they regulate. Br. 31–32 (conceding the point). Context requires a narrower reading

of “regulate.”

Congress knows how to speak clearly when it intends to grant the power to impose tariffs. Its failure to

include any similar express provision in IEEPA suggests that it did not so intend. See Lackey v. Stinnie,

604 U.S. 192, 205 (2025) (when Congress “show[s] that

it knows how to adopt” omitted language, courts should

not add to the text to create such authority). That commonsense observation is not a “magic word” requirement. Br. 27. It reflects a reasonable expectation that

Congress will use similar words to convey similar authority across different statutes. Cf. Pulsifer v. United

States, 601 U.S. 124, 149 (2024) (courts may presume

that “terms with some heft and distinctiveness” are

used consistently).

The closest defendants can come to finding a statute

like IEEPA in which Congress delegated tariff authority is Section 232 of the Trade Expansion Act, which

authorizes the President to “adjust the imports” of any

article that “threaten[s] to impair the national security.” 19 U.S.C. § 1862(c)(1)(A)–(B); see Br. 27–28. In

Federal Energy Administration v. Algonquin SNG,

Inc., 426 U.S. 548, 571 (1976), this Court interpreted

Section 232 to permit license fees on imports. But Section 232 and Algonquin only confirm how little

20

contextual support defendants have for their reading

of IEEPA.

First, Section 232—unlike IEEPA—does refer explicitly to tariffs. Parallel to subsection (c)’s authority

to “adjust the imports” to protect national security,

subsection (a) prohibits the President from decreasing

“the duty … on any article” if it would impair national

security. More generally, the surrounding sections of

the Trade Expansion Act are rife with provisions addressing tariffs and authorizing the President to modify them in appropriate circumstances. See, e.g., Pub.

L. No. 87-794, § 201(a)(2), 76 Stat. 872 (authorizing the

President to proclaim certain “modifications” of “any

existing duty”); id. § 231 (requiring the President to

suspend reductions of “any existing duty” in certain

circumstances). That context is crucial: It may be natural to read a phrase like “adjust the imports” as referring to tariffs in a statute that explicitly deals with tariffs. It is just as unnatural to read a phrase like “regulate … importation or exportation” as referring to tariffs in a statute that otherwise has nothing to do with

tariffs.

Second, Algonquin relied in large part on unusually

clear legislative history, which the decision discussed

at far greater length than the statutory text. That history showed that key members of Congress believed

that Section 232 and its predecessors would authorize

the President to use “tariffs, quotas, import taxes or

other methods of import restriction.” 426 U.S. at 563–

64 (quoting Senator Millikin and observing that

21

Senator Martin also noted that the President had authority to “increase” duties). This Court today relies far

more on text, and far less on legislative history, than it

did in the 1970s. But even on its own terms, Algonquin’s reasoning has no bearing here: No comparable

legislative history exists for IEEPA.2

b. Excluding tariff authority is more

harmonious with the surrounding text.

The text surrounding IEEPA’s phrase “regulate …

importation” makes far more sense if that phrase excludes tariffs than if it includes them. Three features

in particular provide contextual support for reading

“regulate” not to authorize tariffs: (1) it makes “regulate” more consistent with the rest of the verbs in

§ 1702; (2) it gives “regulate” the same meaning for

both “importation” and “exportation”; and (3) it comports with IEEPA’s limit to foreign property.

Consider first the other verbs in § 1702(a)(1)(B):

“Block,” “direct, “compel,” “nullify,” “void,” “prevent,

and “prohibit” are overlapping terms with one goal in

common: to stop transactions between the United

States and another country during an emergency.

What those terms have in common is not that they are

“capacious,” Br. 25, but rather that they connote control over whether the transaction happens. Tariffs, by

Defendants do not reprise the puzzling suggestion of the dissent

below (Pet. App. 98a) that 19 U.S.C. § 1351(c)(1) shows Congress

using “regulate” to mean “tariffs.” The statute defines the phrase

“duties and other import restrictions”—not “duties” alone.

2

22

contrast, give private parties control over whether the

transaction happens—as long as they pay. Viewed

among a list of verbs connoting actions that stop or direct certain financial activities during emergencies,

“regulate” does not suggest a power to keep the activity

unchecked as long as the government makes money

from it. See McLaughlin Chiropractic Assocs., Inc. v.

McKesson Corp., 606 US 146, 160 (2025) (noting that

the noscitur a sociis canon counsels against reading

one term to be “different in kind and broader than” the

other terms that appear in the same list). When the

President is trying to end certain activities immediately in an emergency, tariffs make little sense.3

Consider as well that the object of “regulate” is the

phrase “importation or exportation.” 50 U.S.C.

§ 1702(a)(1)(B) (emphasis added). Article I, section 9,

of the Constitution forbids any “Tax or Duty” on exports. Congress was presumably aware of the constitutional prohibition on taxing exports. Cf. Jett v. Dallas

Indep. Sch. Dist., 491 U.S. 701, 729 (1989) (considering

the “constitutional background known to those who

The dissent below suggested that the power to tariff imports follows logically from the power to bar imports altogether. Pet. App.

97a. Not so. The power to ban activity does not always imply the

power to restrict it in “less extreme, more flexible” ways. Id.; cf.

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 511 (1996) (rejecting a “greater-includes-the-lesser” argument as “inconsistent

with both logic and well-settled doctrine”). The power to tax activity is fundamentally different from the power to regulate or even

ban it; delegation of the latter authority is not carte blanche to

raise taxes.

3

23

enacted” the statute). Yet it listed “exportation” as a

matter that the President could regulate. Whatever

Congress meant by “regulate” for “importation,” it

likely meant the same for “exportation.” That is not

asking the Court to adopt an “artificially narrow reading” of “regulate” in the context of imports. Br. 30. It is

ensuring that the word has a consistent meaning.

Defendants’ broad reading of “regulate,” by contrast, would create a nearly boundless power to tax

goods used or held in the United States. Section 1702

contains several other objects of the verb “regulate,” including “use,” “acquisition,” and “holding.” If “regulate

… importation or exportation” means that a President

may tax imports without limitation, then “regulate …

use” of any foreign property would likewise permit taxation of any foreign property merely because it was

held or used in the United States. On that reading,

Congress gave the President unreviewable and virtually unlimited taxing power over goods in which a foreign national has any interest. But “[i]t would be … a

sharp break with our traditions to conclude that Congress had bestowed on [the executive branch] the taxing power.” Nat’l Cable Television Ass’n v. United

States, 415 U.S. 336, 341 (1974).

Reinforcing that reading is IEEPA’s limitation of

presidential authority to “property in which any foreign country or a national thereof has any interest.” 50

U.S.C. § 1702(a)(1)(B) (emphasis added). That is not a

normal way to describe property subject to import tariffs. Tariffs normally apply to all property imported

24

from a particular country, not just property in which

there is an ongoing foreign ownership interest. See 19

C.F.R. § 102.11 (prescribing rules for determining the

origin of a product, with no mention of ownership). Had

Congress wanted to empower the President to impose

tariffs on imports, it likely would have allowed the

President to “regulate” any property of foreign origin,

not just property in which a foreign country or foreigner “has” any interest.

A narrower reading of the statute does not “strip

‘regulate’ of nearly all effect.” Br. 29. The federal government can “regulate … importation or exportation”

by implementing rules that control the flow of goods

coming into the country, such as by restricting the

quantity or quality of the goods or requiring inspections or quarantines. See, e.g., 21 U.S.C. § 1046(1) (describing regulatory authority to control inspection and

safety of egg products); 46 U.S.C. § 4304 (providing for

regulation of importation of recreational vessels not in

conformity with applicable safety requirements). It

also can “regulate” importation by permitting specific

transactions that otherwise would be prohibited by

IEEPA sanctions. See Venezuela-Related Sanctions,

Off. of Foreign Assets Control, https://ofac.treasury.gov/sanctions-programs-and-country-information/venezuela-related-sanctions (listing licenses

permitting certain transactions otherwise barred by

sanctions). By authorizing the President to “regulate

… importation or exportation,” IEEPA ensures that a

President may impose rules to control, take, or direct

25

property. That does not mean that the President can

impose tariffs.

c. Dictionaries and usage from other

contexts do not show that Congress

meant a broader reading of “regulate.”

Rather than focusing on Congress’s own patterns of

usage and the specific context in which the word “regulate” is used here, defendants urge this Court to rely

on other information about how the word “regulate”

can be used, such as dictionary definitions, excerpts

from case law or treatises, and the Court of Customs

and Patent Appeals’ decision in Yoshida. Br. 24–25.

But none of defendants’ anecdotal observations overcome the contextual evidence.

The ordinary meaning of “regulate” is “to control

(an activity or process) esp. through the implementation of rules.” Regulate, BLACK’S LAW DICTIONARY (12th

ed. 2024); see also Regulate, BLACK’S LAW DICTIONARY

1451 (4th ed. 1968) (“To fix, establish, or control; to adjust by rule, method, or established mode.”); Regulate,

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

1913 (1961) (“to govern or direct according to rule” or

“to fix the time, amount, degree, or rate of (as by adjusting, rectifying)”). None of that inherently conveys a

power to tax. Defendants also rely on usage in court

opinions or treatises to suggest that the power to “regulate commerce” in Article I can include the power to

impose tariffs or duties. See Br. 24–25 (quoting authorities). They overlook that most of those sources were

addressing the respective authority of the federal and

26

state governments, not the separation of powers within

the federal government. See, e.g., McGoldrick v. Gulf

Oil Corp., 309 U.S. 414, 422, 428–29 (1940) (considering whether state had authority to tax certain oil imports).

But more importantly, they misplace their focus on

whether the word “regulate” could ever describe the

constitutional authority to impose tariffs reserved to

Congress in Article I. The question is not whether it is

lexically correct English to talk about a “rule” or “regulation” that imposes taxes or tariffs. It is whether

Congress used that term to convey an expansive delegation of tariff or taxing authority. Defendants effectively concede that the answer turns on context, not

dictionary definitions in a vacuum. They agree, for example, that the term “does not naturally carry the

same inference” in the context of statutes governing

the SEC or EPA, or even in IEEPA in the phrase “regulate … exportation.” Br. 30–32. What they miss is the

relevant context here: every other statute that Congress has enacted governing tariffs. Defendants have

found no examples of their usage in a statute. Not one.

That leaves only Yoshida, which cannot plug the

holes in defendants’ textual analysis. In Yoshida, the

Court of Customs and Patent Appeals considered the

only instance in which a President has relied on emergency economic powers to impose import surcharges—

President Nixon’s Proclamation 4074 in 1974 based on

Section 5(b) of TWEA. That section, like § 1702 of

IEEPA, authorizes the President to “regulate …

27

importation or exportation.” But President Nixon did

not claim the sort of unlimited authority at issue here;

he limited the surcharges to rates previously approved

by Congress. Yoshida, 526 F.2d at 577 (describing limitations on surcharges dependent on rates in column 2

of tariff schedule).4 In that respect, Proclamation 4074

was not “tear[ing] down or supplant[ing] the entire tariff scheme of Congress” but “impos[ing] a limited surcharge, as ‘a temporary measure’” within congressionally approved limits. Id. at 577–78.

Defendants insist that Congress intended to codify

the holding of Yoshida when it enacted IEEPA because

it chose the same wording as in Section 5(b) of TWEA.

Br. 26. But Congress did not intend to approve any

prior use of TWEA when it enacted IEEPA. H.R. Rep.

No. 95-459, at 10 (clarifying that it was not endorsing

any particular uses of TWEA). Nor does its choice to

use the same wording as Section 5(b) mean that it

agreed with Yoshida’s interpretation of that wording.

The Tariff Schedule of the United States contained two columns

setting forth tariff rates. Column 1 rates, which generally applied

to all countries except certain communist countries, were often

lower than the column 2 rates based on concessionary rate reductions negotiated by the President under either the Reciprocal

Trade Agreement Act or the Trade Expansion Act of 1962. United

States Tariff Commission, Tariff Schedule of the United States Annotated, III–IV, 3–7 (5th ed. 1970). In those circumstances, the

column 2 rates—but not the column 1 rates—had “the status of

statutory provisions duly enacted by the Congress.” Tariff Classification Act of 1962, Pub. L. No. 87-456, § 103, 76 Stat. 72, 74. By

capping the increased rates at column 2 levels, President Nixon

stayed within the congressionally approved limit.

4

28

Congress was as concerned about President Nixon’s

use of TWEA as it was about prior Presidents’ use of

TWEA authorities. See, e.g., H.R. Rep. No. 95-459, at

4–5, 8–9 (describing historical examples as “beyond the

authority of section 5(b),” including President Nixon’s

Proclamation 4074, and noting that “[s]uccessive Presidents have seized upon the open-endedness of section

5(b) to turn that section, through usage, into something

quite different from what was envisioned in 1917”).

Moreover, Congress was aware when it enacted

IEEPA that Section 122 and other trade acts would

govern the kind of trade problems that prompted Proclamation 4074. See, e.g., Emergency Controls on International Economic Transactions, Hearings on H.R.

1560 and H.R. 2382, Before the H. Subcomm. on Int’l

Econ. Pol’y & Trade of the H. Comm. on Int’l Rel., 95th

Cong. 114, 119 (1977) (statement of Julius L. Katz, Assistant Sec’y for Econ. & Bus. Aff., Dep’t of State) (discussing the availability of “other permanent legislation” to address “balance-of-payments” problems and

confirming that “[s]uch measures would not have to be

taken pursuant to Section 5(b) [of TWEA] in the future” because of more specific authority in the Trade

Act of 1974); id. at 73 (statement of David J. Steinberg,

President of U.S. Council for an Open World Econ.) (explaining that emergency legislation is not necessary for

import controls to address national security concerns

29

because the President can rely on authorities in the

Trade Act of 1974).

Simply put, Yoshida cannot bear the weight defendants place on it. It is one thing to argue that Congress

intended terms in IEEPA and TWEA to carry the same

meaning. It is quite another to argue that Congress intended to codify a particular lower-court interpretation

of TWEA—much less an interpretation that came from

just a single case that had divided the lower courts. See

BP P.L.C. v. Mayor & City Council of Baltimore, 593

U.S. 230, 141 (2021) (“It seems most unlikely to us that

a smattering of lower court opinions could ever represent the sort of judicial consensus so broad and unquestioned that we must presume Congress knew of and

endorsed it.”) (cleaned up).

2. Other statutory interpretation principles

confirm that IEEPA does not authorize

unlimited tariffs.

The best reading of IEEPA’s text, in context, does

not authorize tariffs at all. But two other principles of

statutory interpretation confirm that at a minimum, it

does not give the President unlimited tariff authority.

First, courts are properly skeptical when the federal

government claims to discover broad new powers in an

old statute, and context does not suggest that Congress

intended to delegate those powers. Second, courts interpret statutes to avoid rather than confront difficult

constitutional questions. Both principles counsel

against reading IEEPA—even if it authorized the

30

President to adjust tariffs in some respects—to grant

the expansive power the President seeks here.

a. The breadth and novelty of the power

the President claims counsels against

defendants’ reading of IEEPA.

1. Congress “speak[s] clearly” when it intends to

delegate authority to make decisions of “vast economic

and political significance.” Util. Air Regul. Grp. v. EPA,

573 U.S. 302, 324 (2014) (cleaned up); see also Ala.

Ass’n of Realtors, 594 U.S. at 764 (noting that the

“sheer scope” of claimed authority is a reason for caution in interpreting a Congressional delegation of authority). So when the Executive “claims to discover in

a long-extant statute an unheralded power to regulate

a significant portion of the American economy,” Util.

Air, 573 U.S. at 324, courts have every “reason to hesitate before concluding that Congress meant to confer

such authority.” West Virginia v. EPA, 597 U.S. 697,

721 (2022) (cleaned up).

That observation is sometimes called the “major

questions doctrine.” Id. at 723. But the label is not

what matters. The doctrine is just proper recognition

of “the importance of context” in interpreting statutory

grants of authority. Biden v. Nebraska, 600 U.S. 477,

508 (2023) (Barrett, J., concurring) (emphasis in original). That context includes using “common sense as to

the manner in which Congress is likely to delegate a

policy decision of such economic and political magnitude.” Id. at 511 (cleaned up). This Court expects

31

Congress to “speak clearly” when it intends to do so. Id.

at 507 (majority op.).

This Court has rejected claims of broad, new federal

authority that had far more textual support than defendants can muster here. In Biden v. Nebraska, for

example, the Administration invoked express statutory authority under the HEROES Act to “waive” or

“modify” statutory provisions related to student loans

during a war or national emergency. Id. at 488; 20

U.S.C. § 1098bb(a)(1). This Court invalidated the Administration’s regulations relieving $430 billion in

debt for 43 million borrowers. It reasoned that accepting the Administration’s interpretation of “waive” or

“modify” would give it “virtually unlimited power to rewrite the Education Act,” effecting a “fundamental revision of the statute.” Biden v. Nebraska, 600 U.S. at

502.

For similar reasons, in National Federation of Independent Businesses v. OSHA, this Court held that the

Secretary of Labor’s authority to set workplace safety

standards under emergency authorities did not include

authority to require COVID-19 vaccines or tests. 595

U.S. at 120. In so holding, this Court emphasized the

lack of historical precedent and the sweeping effects of

the mandate on the economy. Id. at 119–21. But it also

observed that its holding was about the breadth of the

Secretary’s claim of authority, not the complete absence of authority. As this Court explained, the Secretary could issue “targeted regulations” specific to a particular industry or work environment. Id. at 119. But

32

it could not require 80 million Americans to receive

vaccinations or take tests. Id. at 120.

Same for Alabama Association of Realtors. There,

the Court held that the Surgeon General’s authority to

“make and enforce such regulations as in his judgment

are necessary to prevent the introduction, transmission, or spread of communicable diseases” did not include the authority to impose an eviction moratorium

in areas of high COVID-19 transmission. 594 U.S. at

763–65. Although the broad statutory text in isolation

might be read to cover the moratorium, the “sheer

scope” of the claimed authority made it implausible. Id.

at 764. The Administration’s broad reading of the Surgeon General’s authority would have given the CDC “a

breathtaking amount of authority” with little “outside

the CDC’s reach.” Id at 764–65. Equally important, the

Administration had identified “no limit” in the relevant

statute beyond the requirement that the Surgeon General “deem a measure ‘necessary.’” Id. at 765. That

“claim of expansive authority” under the statute was

“unprecedented.” Id.

And in Brown & Williamson, this Court rejected the

FDA’s determination that it had jurisdiction to regulate nicotine as a “drug”—which, if one consulted only

dictionary definitions, it obviously is. Context led this

Court to conclude otherwise. The FDA had never regulated nicotine products, and several statutes suggested

that Congress intended to treat nicotine products differently than other drugs. 529 U.S. at 135–56. This

Court was “confident that Congress could not have

33

intended to delegate a decision of such economic and

political significance in so cryptic a fashion.” Id. at 160.

The expansive tariffing power that the President is

claiming here—unilateral authority over trillions of

dollars in trade—is even more breathtaking and unprecedented than the powers claimed in any of those

cases. Imported goods and services are worth more

than $4 trillion, representing 14 percent of the nation’s

GDP and affecting the price of practically every product in every home. Pet. App. 37a; see also Br. 11 (describing projections that the trade tariffs “will reduce

the national deficit by $4 trillion in upcoming years”).

And given the chance to adopt legislation that would

empower the President to impose unlimited tariffs to

address trade imbalances, Congress has declined. See,

e.g., H.R. 116-764 (2019); H.R. 119-735 (2025). As in

the cases discussed above, context and common sense

weigh decisively against defendants’ reading of the

statute.

2. In resisting that conclusion, defendants fundamentally misunderstand both the commonsense insight behind the major questions doctrine and the implications of their broad reading of IEEPA.

First, IEEPA does not “unambiguously” authorize

tariffs any more than the terms “drug” unambiguously

authorizes the FDA to regulate nicotine or “modify” unambiguously authorizes the Secretary of Education to

forgive student-loan debt. Br. 33. Quite to the contrary:

Considering the extraordinary breadth of the power

the President claims, one would expect Congress to

34

speak exceptionally clearly if it intended to delegate

that authority.

Nor would it be “atextual” for the Court to leave

open that IEEPA might authorize some tariffs but conclude that it does not authorize unlimited tariffs. Br.

32. Defendants assert that “regulate” means, more or

less, “adjust.” Br. 24. Yet the verb “adjust” suggests “no

significant alteration or modification but rather a

bringing into a correspondence or harmony, prearranged or clearly possible but not quite achieved previously.” WEBSTER’S, supra, at 23 (explaining scope of

“adjust” in explaining synonyms for “adapt”). In other

words, if “regulate … importation” means “adjust tariffs,” as defendants suggest, then it means no more

than “bringing tariff rates into a harmony not quite

achieved previously”—say, by undoing previous executive reductions in rates and returning them to congressionally approved levels. Cf. Yoshida, 526 F.2d at 577

(upholding such action). That meaning does not encompass authority to impose any tariff on any country for

any period of time.

This Court has followed a similar path in other

cases involving extraordinary claims of executive authority. It assumed that the HEROES Act, for instance,

permits “specific and limited” loan forgiveness although not blanket forgiveness for millions of borrowers. Biden v. Nebraska, 600 U.S. at 498. It assumed

that the Public Service Health Act permits “direct targeting of disease” although not broad eviction moratoriums affecting millions of renters. Ala. Ass’n of

35

Realtors, 594 U.S. at 764. And it assumed that the

Clean Air Act permits some “system of emission reduction” beyond those governing individual sources, but

not a cap-and-trade system. West Virginia, 597 U.S. at

734–35 & n.5. As in those cases, this Court need not

explain in advance the precise limits on what IEEPA

allows. The “only interpretative question before [the

Court], and the only one [the Court need] answer, is

more narrow”: whether IEEPA authorizes the President to impose any tariff on any country at any time

merely by declaring a national emergency. Id. at 734–

35. The answer is no.

Second, the President’s role in foreign affairs does

not alleviate the need for Congress to speak clearly

when delegating its power. For starters, the relevant

distinction is not between foreign and domestic affairs,

but rather between matters that fall within the President’s independent constitutional authority and matters that do not. See Curtis Bradley & Jack Goldsmith,

Foreign Affairs, Nondelegation, and the Major Questions Doctrine, 172 U. Pa. L. Rev. 1742, 1759–60 (2024).

The Constitution gives Congress, not the President,

the power to impose tariffs and to regulate foreign commerce. U.S. Const., Art. I, § 8. That is direct, textual

evidence that “foreign commerce” cannot simply be

lumped into the broader category of “foreign affairs” or

“foreign relations” when analyzing questions like those

presented here.

Whatever independent constitutional authority the

President may have in the area of foreign relations, it

36

does not include power that is textually committed to

another branch of government. Put differently, “[t]he

President does not have unlimited authority over foreign affairs and sometimes, as in domestic affairs,

needs congressional authorization or approval in order

to act.” Bradley & Goldsmith, supra, at 1747.

If anything, defendants’ historical examples purportedly showing how Congress has “supplemented the

President’s constitutional power over foreign affairs,”

Br. 12, establish that Congress, not the President, controlled the substantive details of trade matters. In

Marshall Field & Co. v. Clark, 143 U.S. 649, 683

(1892), this Court held that Congress had authority to

condition the imposition of congressionally set tariffs

on a limited category of goods upon a presidential finding that other countries imposed “reciprocally unequal

and unreasonable” duties on the same goods. Id. at 692

(noting that it was vital that “Congress itself prescribed, in advance, the duties to be levied, collected,

and paid”). Similarly, in J.W. Hampton, Jr., & Co. v.

United States, 276 U.S. 394, 410 (1928), this Court held

that Congress may delegate to the President authority

to adjust duties up to congressionally approved rates

because that gave the President no power to determine

rates in the first instance and thus “did not in any real

sense invest the President with the power of legislation.” See also Hamilton v. Dillin, 88 U.S. 73, 73 (1874)

(holding that the President’s imposition of licensing

37

fees was not a “tax” on property and that Congress expressly ratified the fees).

Context certainly matters. Perhaps Congress might

not be expected to speak quite as clearly when delegating important decisions in statutes that affect only foreign affairs. But the President is not exercising purely

foreign affairs powers by imposing taxes on domestic

importers. In imposing tariffs, Congress, not the President, is the central player. Congress should be expected to speak especially clearly if it intends to delegate that power wholesale.

Relatedly, even if IEEPA grants broad powers to

the President, there is still a “mismatch” between the

power that the President claims—the power to tax imports without limits—and the categories of actions that

IEEPA otherwise authorizes. See Biden v. Nebraska,

600 U.S. at 517 (Barrett, J., concurring). None of the

actions IEEPA authorizes involves taking money from

foreigners—much less from U.S. citizens who import

products—while they continue to do the things that

have created an “unusual and extraordinary” threat.

Cf. 50 U.S.C. § 1702(a)(1)(C) (granting authority to

“confiscate” certain foreign property but only “when

the United States is engaged in armed hostilities”).

Moreover, Congress has enacted several statutes in Title 19 that specifically describe tariff authority and

prescribe limitations on its use under particular circumstances. IEEPA’s complete silence on tariff authority is the kind of “mismatch” that should give “reason

38

to hesitate before concluding that Congress meant to

confer such authority.” West Virginia, 597 U.S. at 721.

Third, defendants are wrong that the concerns underlying the major questions doctrine “dissipate”

where “Congress delegates authority directly to the

President.” Br. 36. The commonsense principles behind

the major questions doctrine derive from the separation of powers between the legislative and executive

branches, not the distribution of power within the executive branch. Biden v. Nebraska, 600 U.S. at 505 (relying on “separation of powers concerns” when Congress cedes “its control of the purse”); id. at 515 (Barrett, J., concurring) (noting that the doctrine rests on

separation-of-powers principles); Nat’l Fed’n of Indep.

Bus. v. OSHA, 595 U.S. at 124 (Gorsuch, J., concurring) (same). Congress also knows that the President

effectively controls the work of some of the subordinates to which it delegates authority, because the Constitution generally vests the executive power in the

President. Seila Law LLC v. CFPB, 591 U.S. 197, 203–

04 (2020). Common sense suggests that Congress will

speak clearly when giving the executive branch authority to make decisions of vast significance—whether it

gives that authority to the President or a subordinate.

b. Reading

IEEPA

as

authorizing

unlimited tariffs would raise a serious

nondelegation question.

The doctrine of constitutional avoidance leads to

the same conclusion. “Under the constitutional-avoidance canon, when statutory language is susceptible of

39

multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and

instead may adopt an alternative that avoids those

problems.” Jennings v. Rodriguez, 583 U.S. 281, 286

(2018). The alternative need not be “the most natural

interpretation” of the statutory text as long as it is a

“fairly possible” one. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 563 (2012) (cleaned up).

Start with defendants’ interpretation of IEEPA:

Under the auspices of “regulat[ing] … importation,”

the President claims power to impose new tariffs of unlimited magnitude on any U.S. trading partner for an

indefinite period of time, regardless of any limits Congress set in other tariff statutes. And, on defendants’

reading of IEEPA, the President’s imposition of any

such tariffs is “essentially judicially unreviewable.” Br.

21; see also id. at 40–41 (arguing that the “deal with”

requirement is not subject to “meaningful judicial review”). In the President’s view, Congress has told him

to tax imports however he wants.

That reading of IEEPA raises serious constitutional

doubts under the nondelegation doctrine. Article I assigns “[a]ll legislative Powers” to Congress, and that

assignment of power “is a bar on its further delegation.” FCC v. Consumers’ Research, 145 S. Ct. 2482,

2496 (2025). Congress may “seek assistance” from the

executive branch to “implement and apply the laws it

has enacted—for example, by deciding on the details of

their execution.” Id. at 2497. But Congress must “set

out an ‘intelligible principle’ to guide what it has given

40

the agency to do.” Id. And “[t]he guidance needed is

greater … when an agency action will affect the entire

national economy than when it addresses a narrow,

technical issue.” Id. (cleaned up).

The President’s broad claim of unlimited taxing authority on imports, “affect[ing] the entire national

economy,” lacks any intelligible principle to guide it.

Defendants argue that IEEPA sets forth “sufficient

boundaries” because the President cannot invoke

IEEPA for any purpose other than dealing with the

stated national emergency and cannot regulate certain

types of goods. Br. 46. But those are no boundaries. According to defendants, the President can declare essentially anything a national emergency, courts cannot review the President’s determination that the emergency

qualifies as an “unusual and extraordinary threat” or

that the action “deal[s] with” that threat, and any action “deal[s] with” a threat if it gives the President negotiating leverage. Br. 40–41. Constitutional avoidance dictates that the statute not be construed that

broadly. A narrower construction that avoids any serious nondelegation question is not only “fairly possible”

here—it is the most logical and textually supported

construction. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567

U.S. at 563.

Defendants contend that nondelegation principles

should play a more limited role in reviewing statutes

delegating authority over foreign affairs. Br. 44–45.

But a statute purporting to delegate tariff authority

does not delegate authority over foreign affairs. See

41

Consumer Watchdog Am. Br. at 8–12 (explaining why

that assumption is false). And even if taxes on American importers qualified as foreign affairs, defendants

overlook that the “intelligible principle” standard itself

comes from a case involving the President’s authority

over tariffs. See J.W. Hampton, 276 U.S. at 404–05.

The State plaintiffs do not seek to apply any higher

standard here.

In the end, this Court need not decide whether defendants’ broad reading of IEEPA would survive a nondelegation challenge. Constitutional avoidance is

enough to end the analysis, because another “fairly

possible” reading of IEEPA avoids the question altogether.

***

Every significant piece of context points in the same

direction here. IEEPA does not use the terms that Congress typically uses to authorize tariffs, and reading

“regulate” to authorize tariffs is difficult to reconcile

with its surrounding text. Common sense weighs

against discovering an extraordinary new power to remake the national economy in a longstanding statute.

And there is a serious question whether Congress even

can delegate such blanket authority. For all those

42

reasons, the best reading of IEEPA’s text in context

does not authorize the tariffs at issue in this case.5

B. Even if “regulate … importation” included

tariffs, the trade and trafficking tariffs still

exceed IEEPA’s authority.

As explained above, IEEPA does not confer on the

President any tariff authority—or, at a minimum, not

unlimited tariff authority. But even if that were not so,

the Court still should affirm for three additional reasons. First, the trade tariffs exceed Section 122’s limits.

Second, the President has not identified an unusual

and extraordinary threat justifying the trade tariffs.

And third, the President has not shown that the trafficking tariffs “deal with” any of the threats invoked to

justify them.

1. The trade tariffs are invalid because they

exceed Section 122’s limits.

The threat the President identified to justify the

trade tariffs is the existence of “large and persistent

annual U.S. goods trade deficits.” 90 Fed. Reg. at

15,041. But Congress gave the President specific—and

limited—authority in Section 122 of the Trade Act of

1974 to impose tariffs to address that very threat. That

This Court should not address the argument, raised only by amicus America First Policy Institute, that Section 338 of the Tariff

Act of 1930 authorizes the tariffs at issue here. Because the President did not identify Section 338 in his declaration of the emergencies or in any subsequent Executive Orders, it cannot authorize the tariffs. See 50 U.S.C. § 1631 (requiring President to specify

the provisions of law under which he or other officers will act).

5

43

Congress spoke directly on this topic in Section 122 is

further textual evidence that IEEPA does not cover the

same topic. But even if there were some overlap, the

specific limits in Section 122 would control over the

more general grant of authority in IEEPA.

Section 122 provides that “[w]henever fundamental

international payment problems require special import

measures to restrict imports … to deal with large and

serious United States balance-of-payments deficits,”

the President “shall proclaim, for a period not exceeding 150 days (unless such period is extended by Act of

Congress) … a temporary import surcharge, not to exceed 15 percent ad valorem, in the form of duties.” 19

U.S.C. § 2132(a). As the CIT explained, trade deficits

are a type of “balance-of-payment deficit,” because the

balance of trade is a key component of the balance of

payments. Pet. App. 179a–80a.6 Thus, the statute directly addresses the President’s authority to impose

tariffs to deal with “large and serious” trade deficits.

And it limits the tariffs to 15 percent and 150 days—

Defendants properly do not endorse the contrary conclusion of

the dissent below. Pet. App. 116a–18a. In concluding that “balance-of-payments deficits” means only “problems [that] concern

the payments (financial, cash) side of the accounting statement,”

the dissent mistakenly focused on the word “payments” in isolation. Pet. App. 117a. But the phrase “balance of payments” is a

term of art, and—as the dissent acknowledged—trade in goods is

part of the overall balance of payments. Pet. App. 116a–17a n.11.

All parties appear to agree that “balance-of-payments deficits” in

Section 122 include not just financial or cash deficits but also deficits in the current account, including trade in goods.

6

44

limits that the President claimed the authority to ignore in imposing the trade tariffs.

Defendants’ interpretation of IEEPA would allow

the President to avoid those limits whenever he wants.

But nothing in IEEPA purports to override Section

122’s limits. Defendants recognize that this Court’s

task is to harmonize IEEPA and Section 122, but they

propose an implausible way to do so. Br. 38. They contend Section 122 applies only to nonemergency situations and IEEPA applies instead when the President

declares an emergency. But Section 122 applies

“[w]henever” import restrictions are needed to deal

with “large and serious” trade deficits. 19 U.S.C.

§ 2132(a). If large and serious trade deficits become an

emergency, it is one fully covered by Section 122. Congress did not limit Section 122 to nonemergency situations.

The history of Section 122 confirms what its text

suggests: that it applies equally to declared emergencies. Congress enacted Section 122 at President

Nixon’s request after the Customs Court held that he

lacked authority to impose similar surcharges under

then-existing emergency powers in TWEA. S. Rep. No.

93-1298, at 88 (explaining that committee members

did not “wish to take a position one way or the other on

the validity of the 1971 surcharge” but that the President should have authority to impose surcharges even

if “such authority is not likely to be utilized”). President Nixon had declared an emergency. Proclamation

4074, 36 Fed. Reg. 15,724, 15,724 (Aug. 17, 1971)

45

(declaring an emergency based on serious threats to

trade and international competitive position). The

whole issue was the President’s authority in an emergency. Congress chose not to amend TWEA to add additional authority; instead, it conferred limited authority in a stand-alone provision. But the history could not

be clearer that Congress intended Section 122 to address emergencies. See, e.g., Trade Reform: Hearings

before the H. Comm. on Ways and Means, 93rd Cong.

365 (1973) (explaining that balance-of-payments authority would be used “only temporarily” and “in exceptional circumstances”); 93 Cong. Rec. 10931 (1973)

(statement of Rep. Ullman) (explaining that balanceof-payments authority could prove useful in “unusual

circumstances”).

That does not mean that Section 122 “displaces”

IEEPA. Br. 38. It just reflects the “basic principle of

statutory construction that a statute dealing with a

narrow, precise, and specific subject is not submerged

by a later enacted statute covering a more generalized

spectrum.” Radzanower v. Touche Ross & Co., 426 U.S.

148, 153 (1976). Defendants dispute that Section 122

is the more specific statute, Br. 39, but in this circumstance it plainly is: Section 122 provides express, limited authority to raise tariffs to address trade deficits,

while IEEPA grants only general authority to regulate

importation to address emergencies. When the purported emergency is trade deficits, Section 122 is specific and directly on point.

46

Finally, if Congress did intend to codify into IEEPA

Yoshida’s interpretation of TWEA, as defendants contend, Br. 26, it codified all of it—including Yoshida’s

observation that any future surcharge “must, of course,

comply with [Section 122] now governing such action.”

526 F.2d at 582 n.33; see also id. at 578 (“Congress has

said what may be done with respect to foreseeable

events in the Tariff Act, the TEA, and in the Trade Act

of 1974 ….”). Defendants cannot cherry-pick the parts

of Yoshida they like without accepting the rest of the

opinion, which firmly rejected any argument for unlimited tariff authority for the President. Id. at 583 (“We

do not here sanction the exercise of an unlimited [Executive] power, which…[would] strike a blow to our

Constitution.”).

2. The trade tariffs do not address an

“unusual” or “extraordinary” threat.

IEEPA’s text reinforces that its powers do not supplant more specific sources of limited tariffing authority like Section 122. IEEPA requires that its powers be

used only “to deal with an unusual and extraordinary

threat” and not “for any other purpose.” 50 U.S.C.

§ 1701. The trade tariffs do not deal with an “unusual

and extraordinary threat,” because—especially in light

of Section 122—trade deficits are neither “unusual”

nor “extraordinary.”

“Unusual” and “extraordinary” are familiar terms.

“Unusual” means “out of the ordinary” or “exceptional.”

WEBSTER’S, supra, at 2514 (defining “unusual”). “Extraordinary,” in the context of laws, means “of, relating

47

to, or having the nature of a proceeding or action not

normally required by law or not prescribed for the regular administration of the law” or “of, relating to, or

having the nature of an occurrence ([such] as an accident or casualty) or risk of a kind other than what ordinary experience or prudence would foresee.” Id. at

807.

Both of those terms have discernable meanings that

courts are fully capable of enforcing. When IEEPA requires that the threat be “unusual,” it means at least

that it involves circumstances that are rare, and when

it requires that the threat be “extraordinary,” it means

at least that it involves circumstances that are not addressed in existing legislation because Congress could

not reasonably have foreseen them. See H.R. Rep. No.

95-459, at 10 (IEEPA is intended to address “unforeseen contingencies”). In other words, to the extent

IEEPA authorizes the President to impose tariffs at all,

it does so only in circumstances that are rare and not

already covered by another, ordinary tariff statute.

The trade tariffs do not satisfy either requirement.

Trade deficits are not “unusual” because, as the President stated in imposing tariffs, “annual U.S. goods

trade deficits” are “persistent.” Exec. Order No. 14,257,

90 Fed. Reg. at 15,041; see also CAFC Doc. 148 at 215

(Hines Decl.) (noting that “[t]he United States has run

persistent current account deficits since the mid1970s”). “Persistent” is the opposite of “unusual.” See

WEBSTER’S, supra at 1686 (defining “persistent” as

48

“existing for a long or longer than usual time or continuously”).

As Congress explained when it enacted IEEPA,

“emergencies are by their nature rare and brief, and

are not to be equated with normal, ongoing problems.”

H.R. Rep. No. 95-459, at 10; see also Emergency Controls on International Economic Transactions, supra,

at 175 (Chairman Bingham suggesting that “unusual”

be added to “extraordinary” to emphasize that authority should be used only for an “unusual problem”); cf.

City of Grants Pass v. Johnson, 603 U.S. 520, 543

(2024) (concluding that a city’s fines for unauthorized

camping were not “unusual” because “similar punishments have been and remain among ‘the usual mode[s]’

for punishing offenses throughout the country”); Harmelin v. Michigan, 501 U.S. 957, 976 (1991) (noting

that “unusual” means “such as [does not] occu[r] in ordinary practice”).

Nor are trade deficits or their consequences “extraordinary” when Congress anticipated them and

gave the President ordinary tools of trade law in Title

19, such as Section 122, to address them. The same can

be said for other trade problems addressed in Title 19.

For instance, if the International Trade Commission

makes a finding of “serious injury, or the threat

thereof, to a domestic industry” caused by the importation of an article, Congress has allowed the President

to “proclaim an increase in, or the imposition of, any

duty on the imported article.” 19 U.S.C. § 2253(a)(1),

(3). Hence, if imports are causing “serious injury” to a

49

particular sector of the economy, it is not an “extraordinary” threat based on “unforeseen contingencies” but

a “normal, ongoing problem[]” for which ordinary legislation already provides the solution. H.R. Rep. No.

95-459, at 10. Or, to take another example, if the U.S.

Trade Representative determines that another country’s policies or practices are violating a trade agreement or unjustifiably “burden[ing] or restrict[ing]

United States commerce,” the Trade Representative,

“subject to the specific direction” of the President, must

take action that may include “impos[ing] duties or

other import restrictions.” 19 U.S.C. § 2411(a),

(c)(1)(B). Those circumstances—harms to domestic industries or unfair trade practices—are again “normal,

ongoing problems” for which Congress has provided

specific tools and procedures.

To those points, defendants respond primarily by

relying on self-serving statements that were never included in the CIT’s record on summary judgment. Br.

2–3, 41–42 (relying on sworn statements of four Cabinet-level officials). None of those statements is

properly before the Court. On summary judgment in

the CIT, the State plaintiffs submitted extensive evidence, including declarations from fact and expert witnesses. But even after the CIT directed defendants to

file a responsive statement of facts, defendants submitted no evidence and relied on assertions from the Executive Orders themselves. See CAFC Doc. 61-1, at 53,

58–59. Defendants cannot backfill that evidentiary gap

now by relying on declarations submitted on appeal or

50

in support of a motion to stay the judgment pending

appeal.

Regardless, defendants do not offer any contrary

definitions of “unusual” or “extraordinary.” See Br. 42.

Instead, they claim that “the President’s determinations in this area are not amenable to judicial review.”

Br. 42. But that argument conflates an “emergency”

declaration with the identification of an “unusual and

extraordinary” threat. A President does not declare

only an “emergency” under IEEPA, as defendants suggest. Br. 42. Rather, the President must also identify

an “unusual and extraordinary threat” arising from an

emergency. 50 U.S.C. § 1701(a). Defendants’ conflation

of those distinct requirements makes much of their argument beside the point. Even if courts do not ordinarily second-guess a Presidential declaration of an emergency, courts still have a role to play in determining

whether IEEPA’s “unusual and extraordinary threat”

requirement is satisfied. See McLaughlin Chiropractic

Assocs., 606 U.S. at 155–56 (“[U]nless there is persuasive reason to believe” that Congress intended to preclude judicial review, the courts will review the executive’s compliance with statutory limits.”); Zivotofsky ex

rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (explaining that there is no political question when “the

Judiciary must decide [which] interpretation of the

statute is correct”); see also 50 U.S.C. § 1702(c)

51

(contemplating judicial review of determinations under IEEPA).

Any other interpretation would make surplusage of

the “unusual and extraordinary threat” requirement.

Defendants suggest that the Court must accept that

surplusage because IEEPA is needed to respond to

“longstanding” threats. Br. 43. Yet the very examples

they cite show why they are wrong. Each involved presidential actions that were based not on IEEPA alone,

but also on other statutes that do not include the unusual-and-extraordinary requirement. The action regarding trade with apartheid South Africa relied on—

among other statutes—22 U.S.C. § 287c, which grants

the President authority to implement U.N. Security

Council sanctions. Executive Order No. 12,532, 50 Fed.

Reg. 36,861 (Sept. 9, 1985). The sanctions on human

rights abusers relied in part on the Global Magnitsky

Human Rights Accountability Act, which expressly

states that “[t]he requirements of section 202 of the International Emergency Economic Powers Act (50

U.S.C. 1701)”—in other words, the “unusual and extraordinary” requirement—“shall not apply for purposes of this section.” 22 U.S.C. § 10102(b)(2)(B); see

Executive Order No. 13,818, 82 Fed. Reg. 60,839 (Dec.

20, 2017). In fact, provisions like that confirm yet again

that Congress intended the “unusual and extraordinary” requirement to place meaningful limits on the

52

President’s authority unless Congress expressly lifts

those limits.

3. The trafficking tariffs do not “deal with”

the identified threats.

The trafficking tariffs run afoul of another of

IEEPA’s express requirements for presidential action.

IEEPA specifies that the power it grants the President

“may only be exercised to deal with an unusual and extraordinary threat” and “may not be exercised for any

other purpose.” 50 U.S.C. § 1701(b). In other words,

even when the President has declared a national emergency based on an unusual and extraordinary foreign

threat, the President’s response must be targeted only

to deal with that threat.

The statute’s emphasis of that point is significant.

It includes a separate subsection (b) reiterating that

that power conferred in subsection (a)—the power to

“deal with” certain threats—may “only” be exercised

for that purpose and “not … for any other purpose.”

That arguably redundant repetition suggests that Congress regarded the “deal with” requirement as a substantive and important limit on the authority it was

granting. See Emergency Controls on International

Economic Transactions, supra, at 184 (explaining that

“there would have to be some relationship between the

circumstances and the authorities that are exercised”

and that “[t]he declaration of a national emergency

53

does not give the President the right to do whatever he

wants”).

The CIT correctly found that there is a mismatch

between the President’s implementation of across-theboard tariffs on Canada, Mexico, and China and the

problems—drug trafficking and other crime—that the

tariffs purport to address. Pet. App. 191a–95a. The tariffs are not targeted at fentanyl or related products or

any aspect of illicit drug trafficking or crime more generally. Cf. Exec. Order No. 14,059, 86 Fed. Reg. 71,549

(Dec. 17, 2021) (imposing sanctions on foreign persons

involved in the global illicit drug trade). Rather, the

trafficking tariffs apply to almost all goods imported

from the affected nations, regardless of whether any

particular good has a reasonable connection to fentanyl

trafficking or other crime. And the costs the tariffs impose are not directly targeted at traffickers or the foreign governments that the President thinks need to do

more to stop them. The costs fall on importers.

Defendants do not contest that there is a mismatch

between the ends and means in the President’s imposition of the trafficking tariffs. Instead, they argue that

the tariffs “deal with” the identified threats because

they give the President a “bargaining chip” in negotiations with other countries. Br. 40. But mere leverage is

not enough to satisfy IEEPA’s requirement that the

statute be used only to deal with the stated threat, and

not “for any other purpose.” 50 U.S.C. § 1701(b). To

conclude otherwise would essentially read the “deal

with” and “not … for any other purpose” requirements

54

out of IEEPA. See United States v. Menasche, 348 U.S.

528, 538–39 (1955) (noting that it is a court’s “duty to

give effect, if possible, to every clause and word of a

statute, rather than to emasculate an entire section, as

the Government’s interpretation requires”) (cleaned

up).

Defendants’ own example proves the point. Br. 40.

Taking away a teenager’s car keys “deals with” their

failure to do chores because it prevents them from doing something else with the time that could be spent on

chores. True, it may also create leverage, but the sanction deals with the issue by directly influencing the behavior of the target. The trafficking tariffs—which are

imposed on American companies and consumers—are

more like taking away the older sibling’s car keys because a younger sibling failed to do their chores. That

does not deal with the problem of undone chores; it just

tries to get someone else—the older sibling—to deal

with it.

Dames & Moore v. Regan, 453 U.S. 654 (1981), does

not suggest otherwise. There, the Court upheld the

President’s use of IEEPA to nullify attachments and

order the transfer of claims against Iranian property

as part of the resolution of the hostage crisis. Id. at 666,

674. It did not discuss the “deal with” requirement of

IEEPA, which apparently was not contested—and for

good reason: The property at issue in that case was

property of the Government of Iran and its instrumentalities. Id. at 662–63. Dames & Moore thus did not involve, as this case does, the use of IEEPA to attempt to

55

create leverage with a foreign government by imposing

economic consequences on American companies and

consumers with collateral impacts across the world.

Nor does the Court lack “judicially manageable

standards” to determine whether tariffs “deal with”

trafficking via an attenuated chain of causation. Br. 42.

Attenuation is a familiar concept. When assessing causation for purposes of Article III standing, for example,

courts must “rule[] out attenuated links—that is,

where the government action is so far removed from its

distant (even if predictable) ripple effects that the

plaintiffs cannot establish Article III standing.” FDA v.

All. for Hippocratic Med., 602 U.S. 367, 383 (2024).

That bars some parties from suing, say, the IRS for

granting tax exemptions to organizations whose practices harm the parties, even though the denial of tax

exemptions would give them leverage to stop those

practices. Allen v. Wright, 468 U.S. 737 (1984) (racially

discriminatory schools); Simon v. E. Kentucky Welfare

Rts. Org., 426 U.S. 26 (1976) (hospitals that provide

only emergency room services to indigents). If that sort

of leverage theory is too attenuated for Article III

standing, it is too attenuated for a statute that requires

that the action “deal with” the identified threat.

To reach that conclusion, this Court need not reject

defendants’ arguments that the President should get

“substantial deference” in determining what actions

“deal with” a particular threat. Br. 40. Even under a

deferential standard of review, the trafficking tariffs do

not pass muster because of the mismatch between

56

means and ends. Taxing tomatoes does not “deal with”

fentanyl. If that is dealing with the threat of traffickers, then anything is.

CONCLUSION

The judgment of the Court of Appeals for the Federal Circuit should be affirmed.

Respectfully submitted,

DAN RAYFIELD

Attorney General

State of Oregon

BENJAMIN GUTMAN

Solicitor General

Counsel of Record

DUSTIN BUEHLER

Special Counsel

BRIAN SIMMONDS

MARSHALL

CHRISTOPHER A.

PERDUE

LEIGH SALMON

Senior Assistant

Attorneys General

1162 Court Street NE

Salem, OR 97301

(503) 378-4402

benjamin.gutman@

doj.oregon.gov

Attorneys for the State of

Oregon

KRISTIN K. MAYES

Attorney General

State of Arizona

JOSHUA D. BENDOR

Solicitor General

ALEXANDER W. SAMUELS

Principal Deputy

Solicitor General

SYREETA A. TYRELL

Senior Litigation

Counsel

2005 North Central

Avenue

Phoenix, AZ 85004

Attorneys for the State of

Arizona

57

PHILIP J. WEISER

Attorney General

State of Colorado

SARAH H. WEISS

Senior Assistant

Attorney General

1300 Broadway, #10

Denver, CO 80203

Attorneys for the State of

Colorado

KATHLEEN JENNINGS

Attorney General

State of Delaware

IAN R. LISTON

Director of Impact

Litigation

VANESSA L. KASSAB

Deputy Attorney General

820 N. French Street

Wilmington, DE 19801

Attorneys for the State of

Delaware

AARON M. FREY

Attorney General

State of Maine

VIVIAN A. MIKHAIL

Deputy Attorney General

6 State House Station

Augusta, ME 04333

Attorneys for the State of

Maine

WILLIAM TONG

Attorney General

State of Connecticut

MICHAEL K. SKOLD

Solicitor General

165 Capitol Ave

Hartford, CT 06106

Attorneys for the State of

Connecticut

KWAME RAOUL

Attorney General

State of Illinois

JANE ELINOR NOTZ

Solicitor General

115 South LaSalle

Street

Chicago, IL 60603

Attorneys for the State of

Illinois

KEITH ELLISON

Attorney General

State of Minnesota

PETE J. FARRELL

Deputy Solicitor General

445 Minnesota Street,

Suite 600

St. Paul, MN 55101

Attorneys for the State of

Minnesota

58

AARON D. FORD

Attorney General

State of Nevada

HEIDI PARRY STERN

Solicitor General

1 State of Nevada Way,

Ste. 100

Las Vegas, NV 89119

Attorneys for the State of

Nevada

LETITIA JAMES

Attorney General

State of New York

ESTER MURDUKHAYEVA

Deputy Solicitor General

RABIA MUQADDAM

Special Counsel for

Federal Initiatives

MARK LADOV

Special Counsel

28 Liberty St.

New York, NY 10005

Attorneys for the State of

New York

RAÚL TORREZ

Attorney General

State of New Mexico

JAMES W. GRAYSON

Senior Counsel

P.O. Drawer 1508

Santa Fe, NM 87504

Attorneys for the State of

New Mexico

CHARITY R. CLARK

Attorney General

State of Vermont

RYAN P. KANE

Deputy Solicitor General

109 State Street

Montpelier, VT 05609

Attorneys for the State of

Vermont

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.

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