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
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