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

Supreme Court briefOct 22, 2025

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Nos. 24-1287 & 25-250

IN THE

Supreme Court of the United States

————

LEARNING RESOURCES, INC., et al.,

Petitioners,

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, et al.,

Respondents.

————

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, et al.,

Petitioners,

V.O.S. SELECTIONS, INC., et al.,

Respondent.

————

On Writ of Certiorari Before Judgment to the

United States Court of Appeals for the

District of Columbia Circuit and

On Writ of Certiorari to the United States

Court of Appeals for the Federal Circuit

————

BRIEF OF PROFESSORS OF U.S. FOREIGN

RELATIONS LAW AS AMICI CURIAE

IN SUPPORT OF PETITIONERS IN NO. 24-1287

AND RESPONDENTS IN NO. 25-250

————

PAUL B. STEPHAN

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

580 Massie Rd.

Charlottesville, VA. 22903

(434) 924-7098

pbs@virginia.edu

October 22, 2025

Counsel for Amicus Curiae

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

Whether the International Emergency Economic

Powers Act of 1977 (IEEPA), 91 Stat. 1626, as amended,

50 U.S.C. § 1701 et seq., allows the President to impose

tariffs not otherwise authorized by legislation?

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

TABLE OF AUTHORITIES ................................

IDENTITY AND INTEREST OF

AMICI CURIAE ...............................................

SUMMARY OF THE ARGUMENT ....................

ARGUMENT ........................................................

I. IEEPA DOES NOT AUTHORIZE

GOVERNMENT

EXACTIONS

PROPERTY, WHETHER THROUGH

CONFISCATION,

TAXATION

IMPOSITION OF TARIFFS .....................

A. The Law-of-War Background to

TWEA ...................................................

B. Financial Exactions under TWEA ......

1. The original TWEA ........................

2. Amendments to TWEA after

World War I ....................................

3. TWEA after World War II .............

C. Financial Exactions under IEEPA .....

1. Statutory purpose ..........................

2. Implications of later enactments ...

3. Canons of statutory interpretation...............................................

(iii)

TABLE OF CONTENTS—Continued

Page

II. THE YOSHIDA CASE DID NOT CREATE

A NEW POWER TO LEVY TARIFFS .....

A. The Structure of U.S. Trade

Legislation ...........................................

B. The Yoshida Case ................................

1. Yoshida did not supersede tariff

legislation .......................................

2. Yoshida’s gloss on TWEA does not

apply to IEEPA ..............................

III. EXISTING TRADE LAW PROVIDES

THE PRESIDENT WITH AMPLE

AUTHORITIES TO RESPOND TO

INTERNATIONAL EMERGENCIES ......

A. Trade law Provides the President

with Substantial Discretion to Use

Tariffs in Response to International

Challenges ...........................................

B. Interpreting IEEPA as Authorizing

Tariffs

Would

Circumvent

Congressional Limits on the Use of

Taxes as Responses to International

Emergencies.........................................

CONCLUSION ....................................................

TABLE OF AUTHORITIES

CASES

Page(s)

Biden v. Nebraska,

600 U.S. 477 (2023) ................................... 18, 19

Borusan Mannesmann Boru Sanayi ve

Ticaret A.S. v. United States,

63 F.4th 25 (Fed. Cir. 2023) .....................

Cross v. Harrison,

57 U.S. (16 How.) 164 (1853) ....................

Federal Energy Agency v. Algonquin SNG, Inc.,

426 U.S. 548 (1976) ...................................

Fischer v. United States,

603 U.S. 480 (2024) ...................................

Fleming v. Page,

50 U.S. (9 How.) 603 (1850) ......................

Hamilton v. Dillin,

88 U.S. (21 Wall.) 73 (1874) ......................

Lincoln v. United States,

197 U.S. 419 (1905) ...................................

New Orleans v. N.Y. Mail S.S. Co.,

87 U.S. (20 Wall.) 387 (1874) ....................

PrimeSource Building Products, Inc. v.

United States,

59 F.4th 1255 (Fed. Cir. 2023) .................

Sardino v. Federal Reserve Bank of New York,

361 F.2d 106 (2d Cir. 1966) ......................

Transpacific Steel LLC v. United States,

4 F.4th 1306 (Fed Cir. 2021) ....................

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Yoshida Int’l, Inc.,

526 F.2d 560

(C.C.P.A.1975) ..................... 3, 20, 22, 24, 25, 27

West Virginia v. EPA,

597 U.S. 697 (2022) ................................... 18, 19

Yoshida Int’l, Inc. v. United States,

378 F. Supp. 115 (Cust. Ct. 1974) ............ 13, 23

Zenith Radio Corp. v. United States,

437 U.S. 443 (1978) ...................................

CONSTITUTIONAL AND STATUTORY PROVISIONS

Article I, § 8, cl. 1..........................................

Article I, § 8, cl. 3..........................................

1, 3

Article I, § 8, cls. 10-13 .................................

Antidumping Act of 1916, 39 Stat. 798

(repealed)...................................................

Congressional Budget and Impoundment

Control Act of 1974, Pub. L. No. 93-344,

88 Stat. 298 ...............................................

Emergency Banking Relief Act, Pub. L.

No. 73-1, § 2, 48 Stat. 1, 1-2 (1933) ..........

Espionage Act of 1917, Pub. L. No. 65-24,

tit. VII, 40 Stat. 217, 225-26 .....................

Export Administration Act of 1969, Pub. L.

No. 91-184, 83 Stat. 841 ...........................

First Deficiency Appropriations Act of

1917, Pub. L. No. 65-233, § 2, 40 Stat.

1020, 1020-21 ............................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Foreign Sovereign Immunities Act of 1976,

Pub. L. 94-583, 90 Stat. 2891, 28 U.S.C.

§§ 1330, 1602 et seq. .................................

Internal Revenue Code, 26 U.S.C. § 892 .....

Internal Revenue Code, 26 U.S.C. § 7217 ...

International Emergency Economic

Powers Act of 1977, Pub. L. No. 95-223,

91 Stat. 1626, 50 U.S.C. § 1701 et seq. .....

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

§ 203(a)(1)(B), 50 U.S.C.

§ 1702(a)(1)(B) ........................ 2, 3, 15, 18-20, 25

One Big Beautiful Bill Act, Pub. L. 119-21,

139 Stat. 72 (2025) ....................................

Pub. L. 65-109, § 2, 40 Stat. 459, 460 ..........

Pub. L. 95-223, 91 Stat. 1625 (1977) ...........

Reciprocal Trade Agreements Act of 1934,

Pub. L. No. 73-316, 48 Stat. 943 ..............

REPO Act of 2024, Pub. L. No. 118-50,

Div. F, 138 Stat. 895, 942 ......................... 2, 17

Revenue Act of 1916, Pub. L. No. 64-271,

39 Stat. 756 ...............................................

Settlement of War Claims Act of 1928,

Pub. L. 70-122, 45 Stat. 254 .....................

Tariff Act of 1930, Pub. L. 71–361, 46 Stat.

590, 19 U.S.C. § 1202 et seq. .......... 12, 21, 23-25

tit. VII, 19 U.S.C. § 1671 et seq. ...............

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Trade Act of 1974, Pub. L. 93-618, 88 Stat.

1978 ............................................... 13, 14, 21, 27

tit. I., ch. 1, 88 Stat. 1982, 19 U.S.C.

§ 2111 et seq. ............................................

§ 122, 88 Stat. 1987-89, 19 U.S.C.

§ 2132 .................................................. 22, 27, 29

tit. II., ch. 1, 88 Stat. 2011, 19 U.S.C.

§ 2251 et seq. .............................................

tit. III., ch. 1, 88 Stat. 2041, 19 U.S.C.

§ 2411 et seq. .............................................

Trade Expansion Act of 1962, Pub. L. No.

87-794, 76 Stat. 872, 19 U.S.C. § 1801 et

seq. ................................................. 13, 21, 23, 25

§ 232, 76 Stat. 877, 19 U.S.C.

§ 1862 .................................. 4, 13, 19, 22, 26, 28

Trading with the Enemy Act of 1917, Pub.

L. 65-91, ch. 106, 40 Stat. 411, 50 U.S.C.

§ 4301 et seq. .............................................

1-2

§ 3, 40 Stat. 412, 50 U.S.C. § 4303 ...........

§ 5(b), 40 Stat. 415, 50 US.C.

§ 4305(b) ...................................... 7, 9, 13, 23, 24

§ 5(b)(1)(B), 40 Stat. 415, 50 US.C.

§ 4305(b)(1)(B) .................... 2, 3, 9-13, 15, 18, 25

§ 5(b)(2)(B), 40 Stat. 415, 50 US.C.

§ 4305(b)(2)(B) ..........................................

§ 6, 40 Stat. 415, 50 US.C. § 4306 ............

§ 7, 40 Stat. 416, 50 US.C. § 4307 ........ 8, 10, 17

TABLE OF AUTHORITIES—Continued

Page(s)

§ 7(c), 40 Stat. 416, 50 US.C. § 4307(c) ....

§ 9, 40 Stat. 419, 50 US.C. § 4309 ............ 8, 17

§ 11, 40 Stat. 422, 50 US.C. § 4311 ..........

8, 9

§ 12, 40 Stat. 423, 50 US.C. § 4312 ..........

USA Patriot Act of 2001, § 106, 115 Stat.

272, 277-78, 50 U.S.C. § 1702(a)(1)(C) ..... 2, 16

War Powers Act of 1941, Pub. L. 77-354,

55 Stat. 838 ........................................... 9, 11, 12

War Revenue Act of 1917, Pub. L. No. 6550, 40 Stat. 300 .........................................

INTERNATIONAL AND FOREIGN AUTHORITIES

Charter of the United Nations, June 26,

1945, art. 51, 59 Stat. 1031, 1044-45,

T.S. No. 993 ...............................................

Law Debenture Trust Corp. plc v. Ukraine,

[2023] U.K.S.C. 11 ....................................

PRESIDENTIAL PROCLAMATIONS

Exec. Order 8389, 5 Fed. Reg. 1400 (Apr.

12, 1940) ....................................................

Proclamation 4074, 36 Fed. Reg. 15274

(Aug. 17, 1971) ........................... 3, 13, 23-25, 27

Proclamation 10976 of September 29,

2025, 90 Fed. Reg. 48127 (Oct. 6, 2025) ...

TABLE OF AUTHORITIES—Continued

LEGISLATIVE MATERIALS

Page(s)

H.R. 1, 119th Cong., 1st Sess. (2025)........... 19-20

H.R. Rep. No. 65-85 (1917)...........................

Justice Department Memorandum on

Section 5(b) of the Trading with the

Enemy Act (May 21, 1973), reprinted in

Emergency Controls on International

Economic Transactions: Hearings Before

the Subcommittee on International

Economic Policy and Trade of the

Committee on International Relations,

House of Representatives, 95th Cong.,

1st Sess. (1977) .........................................

S.J. Res. 252, 54 Stat. 179 (1940) ................

War Powers Resolution of 1973, H.J. Res.

542, 87 Stat. 555 .......................................

War with Bulgaria, H.J. Res. 319 (1942),

56 Stat. 306 ...............................................

War with Hungary, H.J. Res. 320 (1942),

56 Stat. 307 ...............................................

War with Rumania, H.J. Res. 321 (1942),

56 Stat. 307 ...............................................

COURT FILINGS

Brief of Professor Aditya Bamzai as Amicus

Curiae in Support of Neither Party,

Learning Resources v. Trump, No, 241287 (Sept. 23, 2025) ................................

5, 6

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Ashley Deeks, Mitu Gulati, & Paul Stephan,

The Syndicated Loan for Ukraine: A

Model for Future Crisis Collaboration, 20

Cap. Mkts. L.J. 1 (2025) ...........................

George A. McNulty, Constitutionality of

Alien Property Controls, 11 L. &

Contemp. Prob. 135 (1945) .......................

John Foster Dulles, Vesting Powers of the

Alien Property Custodian, 28 Cornell L.

Rev. 245 (1943)..........................................

Report of the War Trade Board (1920) ........

IDENTITY AND INTEREST OF AMICI CURIAE

Andrew Kent is the Joseph M. McLaughlin Chair at

Fordham University School of Law. He has written

numerous academic articles about U.S. sanctions authorities, U.S. foreign relations law, separation of powers,

and international law, including the law of war.

Paul Stephan is the John C. Jeffries, Jr., Distinguished

Professor and the Louis F. Ryan ’73 Research Professor

at the University of Virgina School of Law. He has

served as Counselor on International Law to the Legal

Adviser of the Department of State and Special

Counsel to the General Counsel of the Department of

Defense. He was Coordinating Reporter of the American

Law Institute’s Restatement (Fourth) of the Foreign

Relations Law of the United States. He has written

extensively about U.S. sanctions law and testified

before Congress and advised the Departments of State

and Treasury on the design of sanctions on the

Russian Federation under IEEPA.

Amici have an interest in the sound development of

the law in the areas covered by this brief.1

SUMMARY OF THE ARGUMENT

The International Emergency Economic Powers Act

of 1977 (IEEPA), Pub. L. No. 95-223, 91 Stat. 1626, as

amended, 50 U.S.C. § 1701 et seq., does not authorize

the President to impose tariffs on the importation of

goods to the United States. IEEPA represents a

limited grant of authority tied to the foreign commerce

powers of Congress under Article I, § 8, cl. 3. It stands

in contrast to the Trading with the Enemy Act of 1917

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

in part, and no counsel or party made a monetary contribution

intended to fund its preparation or submission.

(TWEA), ch. 106, 40 Stat. 411, as amended, 50 U.S.C.

§ 4301 et seq., which authorizes war powers consistent

with Article I, § 8, cls. 10-13, of the Constitution and

the international law of war.

The enactment of IEEPA in 1977, paired with

amendment of TWEA by the same statute, drew a

clear line between emergency powers for peacetime

and powers that come into existence only upon the

declaration of war. Although these statutes have some

common language, they proceed from different constitutional foundations, serve different purposes, and

work within different legal contexts.

Only TWEA provides a general authority for the

executive to confiscate alien property or any inferred

lesser power to impose exactions such as tariffs or

taxes. The amendment of IEEPA by the USA Patriot

Act of 2001, § 106, 115 Stat. 272, 277-78, 50 U.S.C.

§ 1702(a)(1)(C), and the adoption of the REPO Act of

2024, Pub. L. No. 118-50, Div. F, 138 Stat. 895, 942,

confirm that, without express legislative sanction, the

presidential powers available under IEEPA do not

include actions that alter the ownership of alien

property interests.

The line between war powers and peacetime

measures to influence foreign relations frames the

statutory interpretation issue at the heart of this case.

Determinative to the outcome is the meaning of the

word “regulate.” Section 5(b)(1)(B) of TWEA authorizes

the President, among other war powers, to “regulate

. . . importation or exportation of . . . property in which

any foreign country or a national thereof has any

interest.” 50 US.C. § 4305(b)(1)(B). The same term

appears in Section 203(a)(1)(B) of IEEPA. 50 U.S.C.

§ 1702(a)(1)(B). Until this dispute arose, no President

had relied on this term to levy a tariff or any other

monetary charge, much less to confiscate.

The principles of noscitur a sociis and ejusdem

generis, as well as the major questions doctrine, oppose

reading a tariff authority into IEEPA. IEEPA’s transformation of TWEA Section 5(b)(1)(B), and in particular

its divorce of regulatory power from vesting power,

imposes a narrower meaning on the term “regulate” by

changing the company it keeps. The government’s

contrary argument would tear down the barrier

between peacetime emergency powers and those

available to prosecute a war. It would also read into

that term an authorization for a broad, consequential,

and largely discretionary presidential power to impose

taxes as well as tariffs.

The United States argues that the Nixon administration relied on TWEA § 5(b)(1)(B) as authority for

its 1971 levy of a surcharge on all dutiable imports,

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

560 (C.C.P.A. 1975), agreed. It follows, the United States

maintains, that Congress endorsed this gloss when it

included similar language in IEEPA § 203(a)(1)(B).

The first part of this argument is wrong as a matter of

fact: President Nixon’s Proclamation referenced only

his authorities under trade legislation and limited the

scope of the levy so as not to violate limits imposed by

that legislation. As to the second part of the argument,

the Yoshida court did refer to TWEA as support for the

surcharge, but also insisted that this authority could

not exceed the existing trade law limits with which the

presidential proclamation expressly complied.

Interpreting IEEPA as not covering tariffs or other

monetary exactions does not hobble the President.

Existing trade law gives him significant authority to

adjust tariffs to confront a national emergency.

Current law expressly provides for tariffs motivated

by reasons of national security. Trade Expansion Act of

1962, Pub. L. No. 87-794, § 232, 76 Stat. 872, 877, as

amended, 19 U.S.C. § 1862. Trade legislation provides

several other authorities to raise tariffs in response to

unfair or discriminatory foreign conduct. The President

has found Section 232 sufficient for many of the more

recent tariffs. This Court should not endorse an unfounded

and nearly limitless interpretation of “regulate” in IEEPA

to satisfy a need that existing trade law already meets.

ARGUMENT

I. IEEPA DOES NOT AUTHORIZE GOVERNMENT EXACTIONS OF PROPERTY,

WHETHER THROUGH CONFISCATION,

TAXATION OR IMPOSITION OF TARIFFS

Throughout U.S. history, presidents have imposed

financial costs on enemies as part of the prosecution of

wars. These measures include naval blockades, the law

of prize, control of commerce with enemies, seizing

enemy assets, and, at times, imposing taxes and fees

attendant to temporary U.S. military occupation of

enemy territory.

The United States also has used economic measures

as an instrument of foreign policy, such as freezing assets

(without taking title), imposing peacetime embargos,

and withdrawing trade concessions and other economic

advantages. Over the course of the twentieth century,

Congress enacted detailed legislation governing both

the wartime and peacetime use of economic power in

foreign relations.

A. The Law-of-War Background to TWEA

The pre-1917 history of U.S. use of economic

measures in the prosecution of wars has only limited

relevance to an understanding of TWEA. Before

World War I, the executive branch sometimes imposed

wartime tariffs and taxes, not otherwise authorized by

regular trade and tax legislation, only as exercises of

the well-established war power to administer occupied

enemy territory. On occasion, Congress gave the

President authority to license transactions that

crossed enemy lines as part of a general ban on trading

with the enemy. We are aware of no evidence, however,

that Presidents ever exercised this power to derive

revenue from commerce with persons actively engaged

in war with the United States.

The amicus brief of Professor Bamzai asserts, to the

contrary, that “the background understanding of the

laws of war in the pre-TWEA era embraced the notion

that the greater authority (to prohibit trade altogether)

included the lesser authority (to allow trade subject to

taxes or fees).” Bamzai Brief at 26. A review of the

cases cited indicates a much narrower principle at

stake, one TWEA did not address.

Fleming v. Page, 50 U.S. (9 How.) 603 (1850),

concerned the temporary U.S. military occupation of

the port of Tampico, Mexico, during the Mexican War.

The Court signaled approval of the military government’s levying of “contributions” at Tampico—a place

“invaded and subdued, and occupied as the territory of

a hostile foreign nation”—through import duties and

otherwise. 50 U.S. at 615. The other cases cited arose

from similar military occupations of enemy territory,

in California as a result of the Mexican War, Cross v.

Harrison, 57 U.S. (16 How.) 164 (1853), and the

occupied Confederacy during the Civil War, Hamilton

v. Dillin, 88 U.S. (21 Wall.) 73 (1874). The cases express

the principle that a military government over conquered

enemy territory may “displace the preexisting authority”

and “exercise by itself . . . all the powers and functions

of government[,]” including the power to “prescribe the

revenues to be paid” within the territory, in order to

“strengthen itself and weaken the enemy.” New Orleans

v. New York Mail S.S. Co., 87 U.S. (20 Wall.) 387, 394

(1874).2 TWEA did not contemplate instances of governance of occupied territories and thus had nothing

to say about that prospect.

In short, this particular background understanding

of the law of war, the only one involving taxes and

tariffs and the only one in play in the cases cited by

the amicus brief, did not inform TWEA in any respect.

B. Financial Exactions under TWEA

The United States argues that the authority for the

President’s tariffs originates in TWEA, and was then

incorporated into IEEPA in 1977. To assess this claim,

it is necessary first to understand the origin and

evolution of TWEA.

1. The original TWEA

Congress adopted TWEA upon the entry of the

United States into World War I. TWEA was primarily

designed to control cross-border trade with enemies

and business activities of enemies in the United

States, and to allow the sequestration of enemy

property under U.S. jurisdiction. It was not an internal

or external revenue statute. A year earlier, when the

prospects of war were gathering, Congress raised some

Another case cited by Professor Bamzai, Lincoln v. United

States, 197 U.S. 419, 427-28 (1905), held that the executive branch

had no law-of-war or other power to impose its own tariffs on

goods coming into Manilla after the peace treaty with Spain had

ended the war and incorporated the Philippines into the United

States, even though portions of the Philippines were in insurrection.

tariffs and created the U.S. Tariff Commission. Revenue

Act of 1916, 39 Stat. 756. Then, immediately before

adopting TWEA, Congress passed the War Revenue

Act of 1917, Pub. L. No. 65-50, 40 Stat. 300, to raise

taxes to defray the costs of war. These measures, and

not TWEA, addressed the war’s fiscal requirements.

TWEA was an entirely different kind of enactment.

Section 3 of TWEA banned trade with persons known

to be an “enemy” or “ally of enemy,” the transportation

of enemy aliens into the United States, and written

communications with enemy aliens, except as licensed

by the President. Section 5(b), the much-amended

ancestor of the provision at the center of this case,

authorized the President to “regulate,” under conditions

he prescribed, transactions in foreign exchange,

bullion, and financial instruments, including evidences of

property ownership, between U.S. persons and persons

resident in “any foreign country.” 40 Stat. at 415.

Unlike Section 3, this authority applied to all transactions between U.S. persons and persons abroad,

whether enemy alien or not.

Section 11 of TWEA gave the President authority to

restrict or ban imports. In a break from historical

wartime practice, this power extended to imports from

all countries, not just imports from enemy states or on

behalf of enemy aliens. President Wilson imposed no

tariffs or taxes under this provision, but rather, through

a War Trade Board, limited designated imports to

achieve war aims.3 By its terms, this authority existed

only “during the present war,” and thus expired at the

war’s end.

Section 6 of TWEA created the Office of the Alien

Property Custodian to take possession of enemy alien

Report of the War Trade Board 5-6, 10 (1920).

property within U.S. jurisdiction. Section 7(c) allowed

the President to require the transfer to the Custodian

of any property owned by or held on behalf of enemy

aliens. Section 9 authorized suits to recover wrongfully

seized property, but only if the claimant were “not an

enemy, or ally of enemy.” It also allowed non-enemies

to seek satisfaction of third-party claims against the

assets held by the Custodian. Section 12 provided that,

“[a]fter the end of the war any claim of any enemy or

of an ally of enemy to any money or other property

received and held by the alien property custodian . . .

shall be settled as Congress shall direct.”4

Two 1918 amendments to Section 7 expanded

the Custodian’s authority. One allowed the sale of

administered assets, but not the disbursement of

the proceeds to the treasury. Pub. L. 65-109, § 2, 40

Stat. 459, 460. The other directed the Custodian to

take ownership of specified intellectual property, but

again not for the purpose of converting the assets for

the benefit of the United States. First Deficiency

Appropriations Act of 1917, Pub. L. No. 65-233, § 2, 40

Stat. 1020, 1020-21.

In sum, the World War I version of TWEA banned

commercial intercourse with the enemy, authorized

the President to regulate a limited range of international transactions affecting the financial system, and,

for the duration of the war, permitted presidential

In 1922 the United States and Germany established a claims

commission to administer claims of their nationals against the

other country. The assets still held by Custodian could be used to

satisfy the claims of U.S. nationals. Settlement of War Claims Act

of 1928, Pub. L. 70-122, 45 Stat. 254. The remaining assets were

gradually returned to their pre-war owners until Germany

defaulted on debts to the United States, after which Congress

halted repayments of TWEA seizures.

control over imports generally, as well as seizure of

enemy property and its administration by a Custodian.

The Act gave the government considerable leeway over

the seized property, including allowing its conversion

into cash, but did not authorize the outright confiscation of those assets for the benefit of the United States.

At no time was TWEA used to impose tariffs or taxes.

2. Amendments to TWEA after World War I

Responding to President Roosevelt’s declaration of a

bank holiday upon his assumption of office, Congress

revised Section 5(b) of TWEA to extend it to national

emergencies, not just times of war. Emergency Banking

Relief Act, Pub. L. No. 73-1, § 2, 48 Stat. 1, 1-2 (1933).

Complementing the broadening of presidential emergency powers, Congress reduced the effect of that

provision by removing the power to regulate international transactions involving evidences of ownership of

property. Following the outbreak of World War II in

Europe, but before the United States had joined the

conflict, Congress restored that power. S. J. Res. 252,

54 Stat. 179 (1940). This step ratified President

Roosevelt’s taking control over the U.S. assets of

persons that were nationals of the European countries

that Germany had occupied. Exec. Order 8389, 5 Fed.

Reg. 1400 (Apr. 12, 1940).

In the wake of the U.S. declaration of war on Japan

and Germany, the War Powers Act of 1941, Pub. L. 77354, 55 Stat. 838, again amended TWEA. The amendment added subsection § 5(b)(1)(B), which authorizes

the President to “regulate . . . any . . . importation or

exportation of . . . any property in which any foreign

country or national thereof has any interest.” This

provision resembles that of the expired Section 11, but

went even further by applying to exports.5 Section

5(b)(1)(B) also gave the President the power to vest in

the United States ownership of any alien property.

This went further than Section 7 in the original

TWEA, which applied only to the property of enemy

aliens and resulted only in sequestration.6 Prominent

U.S. lawyers, including those involved in the law’s

administration, argued that, to avoid constitutional

and international legal issues, Section 5(b)(1)(B)

should be limited to transactions directly implicating

the war effort.7

The first of these measures introduced to TWEA the

“regulate . . . importation” language at issue in this

case. The second created a new authority to confiscate

alien property, whether enemy or not. Each of these

actions represented a break from prior U.S. and international practice, which recognized only a combatant’s

power to ban or restrict trade with its enemy and to

sequester or confiscate enemy property.

As enacted (and up to the present day), Section

5(b)(1)(B) of TWEA provides that the President may:

investigate, regulate, direct and compel, nullify,

void, prevent or prohibit, any acquisition

During World War I, the Espionage Act of 1917, Pub. L. No.

65-24, tit. VII, 40 Stat. 217, 225-26, gave the President authority

to regulate exports “during the present war”.

As noted above, fn. 4, the United States could sell the

sequestered assets but retained the proceeds for later disposition,

including return to owners after satisfaction of outstanding claims.

John Foster Dulles, Vesting Powers of the Alien Property

Custodian, 28 Cornell L. Rev. 245 (1943); George A. McNulty,

Constitutionality of Alien Property Controls, 11 L. & Contemp.

Prob. 135 (1945) (Chief, Alien Property Unit, War Division,

Department of Justice).

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; and any property or interest of any

foreign country or national thereof shall vest,

when, as, and upon the terms, directed by the

President, in such agency or person as may be

designated from time to time by the President,

and upon such terms and conditions as the

President may prescribe such interest or

property shall be held, used, administered,

liquidated, sold, or otherwise dealt with in the

interest of and for the benefit of the United

States . . .

50 U.S.C. § 4305(b)(1)(B) (emphasis added). The statute

links the power to “regulate” imports directly to the

power to “vest” ownership of alien property in the

United States, as the italicized language provides. There

is no indication of a connection to tariffs or taxes, which

other contemporaneous legislation addressed in detail.

3. TWEA after World War II

Dating from the 1933 amendment, TWEA applied to

any national emergency, not just declared wars. The

1941 War Powers amendment did not provide for

automatic termination of the new authorities at war’s

end. This lacuna may have made sense at the time, as

it was deeply uncertain which states would become the

enemies of the United States.8 Once the war ended and

the Cold War commenced, the anomaly of authorizing

war powers during peacetime became evident.

From 1946 on, jurists and government officials

wondered whether the President might use powers

traditionally confined to the conduct of war to meet the

new challenges posed by the unprecedented postwar

position of the United States. They debated whether

some war powers might extend to international

confrontations not satisfying the historical definition

of a war and not involving a congressional declaration

of that status. Some suggested that the modern world

recognized a new category of hostility, neither peace

nor war in the traditional sense, that justified the

exercise of some war powers. See, e.g., Sardino v.

Federal Reserve Bank of New York, 361 F.2d 106, 11112 (2d Cir. 1966) (Friendly, J.).

While drawing much interest, the question of a new

category between war and peace was never put to the

test in the courts. At no time did any President impose

a tariff or other monetary levy under the authority of

Section 5(b)(1)(B). Without exception, TWEA sanctions,

besides travel bans, involved trade embargoes and the

sequestration of property, but not forfeiture. This was

true, for instance, of the Cuban sanctions at issue in

Sardino. No President ever invoked TWEA to impose

or adjust tariffs in conflict with existing trade legislation, in particular the Tariff Act of 1930, Pub. L. 71–

361, 46 Stat. 590 as amended, 19 U.S.C. § 1202 et seq.,

Six months after adoption of the War Powers Act, Congress

declared war on three more Axis powers. War with Bulgaria,

H.J. Res. 319 (1942), 56 Stat. 306; War with Hungary, H.J. Res.

320 (1942), 56 Stat. 307; War with Rumania, H.J. Res. 321 (1942),

56 Stat. 307.

the Trade Expansion Act of 1962, and the Trade Act of

1974, Pub. L. No. 93-618, 88 Stat. 1978.9

Although President Nixon in 1971 imposed a special

tariff to respond to a balance of payments crisis, his

proclamation relied on authorities provided by existing

trade legislation. Proclamation No. 4074, 36 Fed. Reg.

15,724 (Aug. 17, 1971). The argument that the proclamation might also rest on TWEA § 5(b)(1)(B) emerged

only in the course of litigation challenging the levy.

Yoshida Int’l, Inc. v. United States, 378 F. Supp. 1155,

1157 (Cust. Ct. 1974). We discuss Yoshida and its

irrelevance to IEEPA in Section II of this brief.

C. Financial Exactions under IEEPA

In this litigation, the United States rests its claim

for the validity of its tariffs on IEEPA, not TWEA.

Before the levies at issue in this case, no President had

ever interpreted IEEPA as authorizing monetary

exactions. The language, purpose, and history of

IEEPA all point in the same direction: IEEPA does not

If such an authority existed under TWEA, Congress would

have had no reason to adopt Section 232 of the Trade Expansion

Act of 1962, which expressly creates a power to adjust tariffs in

response to a subset of national emergencies, namely those

threatening national security. In 1973, the Department of Justice

prepared a detailed memorandum on section 5(b) of TWEA for a

special Senate committee on national emergency statutes. In

reviewing executive branch uses of section 5(b), the memorandum

gave no indication that tariff authority was thought to exist.

Justice Department Memorandum on Section 5(b) of the Trading

with the Enemy Act (May 21, 1973), reprinted in Emergency

Controls on International Economic Transactions: Hearings

Before the Subcommittee on International Economic Policy and

Trade of the Committee on International Relations, House of

Representatives, 95th Cong., 1st Sess., at 231-35 (1977). The

memorandum refers to Proclamation 4074 but indicates that the

duty imposed there did not rest on Section 5(b).

provide an independent tariff authority untethered

from trade legislation.

1. Statutory purpose

Congress adopted IEEPA in 1977 to provide an

exclusive basis for economic sanctions in foreign relations in the absence of a declared war. IEEPA followed

other contemporary enactments that reclaimed for

Congress foreign relations powers that Presidents had

exercised since the end of World War II. These include

the use of force (War Powers Resolution of 1973, H.J.

Res. 542, 87 Stat. 555), the levying of tariffs (Trade

Act of 1974), the expenditure of appropriated funds

(Congressional Budget and Impoundment Control Act

of 1974, Pub. L. No. 93-344, 88 Stat. 298), and the

recognition of foreign sovereign immunities (Foreign

Sovereign Immunities Act of 1976, Pub. L. 94-583, 90

Stat. 2891, as amended 28 U.S.C. §§ 1330, 1602 et seq.).

The 1977 enactment has three titles. The first amended

TWEA to restrict its scope to instances of declared war,

restoring the pre-1933 status quo. The second created

IEEPA. The third amended the Export Administration

Act of 1969, Pub. L. No. 91-184, 83 Stat. 841, to clarify

the President’s authority to regulate exports on

national security grounds. Pub. L. No. 95-223, 91 Stat.

1625 (1977). The net effect of these provisions was to

separate categorically the powers that the President

may wield during a declared war and those available

to address peacetime international challenges.

First, IEEPA limits the scope of presidential authorities in comparison to the 1933-77 version of TWEA.

Before the 1977 amendment, TWEA applied to both a

declared war and “any other period of national

emergency declared by the President.” IEEPA restricts

the definition of a national emergency to “any unusual

and extraordinary threat, which has its source in

whole or substantial part outside the United States, to

the national security, foreign policy, or economy of the

United States.” IEEPA § 202(a). Thus, IEEPA does not

apply to purely domestic problems such as the 1933

banking crisis.

Second, IEEPA, while using some of the language

of TWEA § 5(b)(1)(B) to define emergency powers,

struck out all references to asset confiscations. IEEPA

§ 203(a)(1)(B) conveys to the President the power to

“regulate . . . importation or exportation of . . . any

property in which any foreign country or a national

thereof has any interest.” But it does not link that

authority to the power to “vest . . . such property or

interest” in agencies of the United States. Congress

excised that language from the statute. The IEEPA

authority, unlike the TWEA authority, does not invoke

traditional wartime powers to alter the ownership of

enemy property interests.

Congress understood that international law and

practice condones the banning of transactions and the

freezing of assets as a legitimate means of influencing

international relations in peacetime. As the U.K.

Supreme Court recently observed:

[T]he imposition or threat of trade restrictions

in order to exert pressure upon other states,

and thereby achieve political objectives, has

been part of the armoury of the state since

classical times. It was a familiar aspect of

state practice during the period when English

commercial law and equity were developing

in the eighteenth and nineteenth centuries:

for example, during the American War of

Independence, the Napoleonic Wars and the

War of 1812. Trade sanctions, embargoes and

protectionism more widely remain normal

and important aspects of statecraft in the

modern world.

Law Debenture Trust Corp. plc v. Ukraine, [2023]

U.K.S.C. 11, 55.

In contrast, taking property simply because of the

identity of the owner—rather than as a forfeiture

penalty for an independent legal violation or as a

lawfully authorized tax, whether tariff or otherwise—

is permissible only during war. Congress adopted

IEEPA precisely to end the ambiguity posed by the

previous version of TWEA as to whether the President

could exercise war powers during peacetime, particularly the power to impose exactions on property and

transactions for no reason other than the involvement

of an alien.

2. Implications of later enactments

Later enactments confirm that IEEPA does not bestow

any power to convert seized assets into revenues for

the United States. Following the 2001 Al Qaeda attacks,

Congress amended IEEPA to grant the President an

exceptional authority to confiscate the property of

states or persons engaged in an attack on the United

States. USA PATRIOT Act of 2001, § 106, 115 Stat.

272, 278-80, codified at 50 U.S.C. § 1702(a)(1)(C). In

effect, this provision authorizes the President to

exercise war powers of the type provided by TWEA, in

the absence of a declaration of war but where the

international law requirements for armed self-defense

are met. See UN Charter, art. 51.

Second, responding to Russia’s 2022 invasion of

Ukraine, members of Congress and several public

figures called on the President to confiscate Russia’s

frozen sovereign assets and to transfer the proceeds to

Ukraine. Without confiscation authority under IEEPA,

the Biden administration declined to take this step.

Congress responded by enacting the REPO Act of

2024, Pub. L. No. 118-50, Div. F, 138 Stat. 895, 942. This

law filled IEEPA’s gap by authorizing the use of

Russia’s frozen assets for Ukraine. Congress acted

with the understanding that, even though a state of

war did not exist between Russia and the United

States, Russia’s flagrant violation of the international

legal prohibition of armed aggression required an

extraordinary response. Ashley Deeks, Mitu Gulati, &

Paul Stephan, The Syndicated Loan for Ukraine: A

Model for Future Crisis Collaboration, 20 Cap. Mkts.

L.J. 1, 2-3 (2025). Congress did not extend the

confiscation power further than authorizing these

specific measures.

Each of these later enactments make clear that,

except when they apply, IEEPA does not allow the

President to make the United States the owner of

sanctioned property. As with Sections 7 and 9 of the

original TWEA, the United States may subject this

property to any lawful taxes, imposts, or third-party

claims that otherwise would apply. What IEEPA does

not do is allow the president to impose otherwise

unauthorized exactions or financial penalties on

property subject to IEEPA, potentially including any

property subject to U.S. jurisdiction in which an alien

has an interest. This restriction reflects IEEPA’s

purpose of separating the tools needed to respond to

peacetime international emergencies, which includes

asset freezes, from those available during war, which

include confiscating property, in whole or in part.

3. Canons of statutory interpretation

Proper application of canons of statutory interpretation

compels interpreting IEEPA as not including a tariff

authority unchained to existing trade legislation. The

United States argues that Section 5(b)(1)(B) of TWEA

allows the President to impose tariffs as part of the

power to “regulate . . . importation,” and that the

appearance of these same words in IEEPA’s Section

203(a)(1)(B) indicates that this statute provides an

identical authority during peacetime. Section I.B of

this brief challenges the premise of this argument,

that TWEA encompasses a tariff authority. But even

conceding that point for the sake of argument, the

conclusion does not follow. The principles of noscitur a

sociis and ejusdem generis, Fischer v. United States,

603 U.S. 480, 487-88 (2024), as well as the major questions doctrine, Biden v. Nebraska, 600 U.S. 477 (2023);

West Virginia v. EPA, 597 U.S. 697 (2022), require

reading IEEPA Section 203)(a)(1)(B) as not providing

a freestanding authority to impose tariffs, whatever

TWEA Section 5(b)(1)(B) might mean.

As Section I.B.2 of this brief recounts, Section

5(b)(1)(B) of TWEA contains a back-to-back authorization of the power to “regulate . . . imports” and to

confiscate property subject to such regulation. Congress,

however, excised the confiscatory power from Section

203(a)(1)(B) of IEEPA. This move changed the surroundings text and context of “regulate” and removed

a specific term that might inform that word’s interpretation. By eliminating the power to alter property

rights in sanctioned property, Congress indicated that

regulations that achieve that result, such as a tax,

tariff, or confiscation, were no longer available. Even

though the term “regulate” appears in both statutes, it

lives in different neighborhoods and requires different

interpretations.

Were there any doubt that the excision of tax, tariff,

and confiscatory powers from Section 203(a)(1)(B) of

IEEPA affects the meaning of the term “regulate,” the

major questions doctrine settles the issue. The present

dispute is a case “in which the ‘history and the breadth

of the authority that [the agency] has asserted,’ and

the ‘economic and political significance’ of that assertion,

provide a ‘reason to hesitate before concluding that

Congress’ meant to confer such authority.” Biden v.

Nebraska, 600 U.S. at 501 (cleaned up); West Virginia

v. EPA, 597 U.S. at 721.

Current trade legislation already gives the President

significant discretion to adjust tariffs, either through

international agreements or unilaterally. As Section

III of this brief argues, this includes Section 232 of the

Trade Expansion Act of 1962, an authority that the

present administration has used to adopt tariffs much

like the ones at issue in this case. What the interpretation of IEEPA Section 203(a)(1)(B) urged by the United

States would do is give the President virtually

unlimited powers to impose new tariffs unbounded by

the several substantive and procedural requirements

that trade law imposes on these authorities. Moreover,

the presidential powers that the United States would

read into Section 203(a)(1)(B) go well beyond tariffs. If

“regulate” includes the imposition of tariffs, then

surely it applies to taxation as well.

The deployment of an IEEPA-based presidential

taxation power to address international economic

grievances is not fanciful. The House version of the tax

legislation enacted as the One Big Beautiful Bill Act,

Pub. L. 119-21, 139 Stat. 72 (2025), would have

authorized the President to impose a withholding tax

on the currently exempt income of foreign governments from the U.S. investments, conditioned on the

President’s determination that those countries discriminate against U.S. technology companies. H.R. 1, 119th

Cong., 1st Sess., § 112029 (adding new Section 899 to

Internal Revenue Code). The proposal did not survive

Senate consideration. Under the reading of Section

203(a)(1)(B) urged by the United States in this case,

however, approval of Congress would be unnecessary.

The President could determine that the threat to the

technology sector constitutes a national emergency

and proceed accordingly.

The wisdom of revoking a tax exemption for foreign

governments based on their treatment of particular

U.S. businesses is debatable. What should be clear,

however, is that such a consequential discretionary

power should not be implied from a general authority

in IEEPA to “regulate” transactions in which foreign

persons have an interest, such as placing investments

in the United States.

II. THE YOSHIDA CASE DID NOT CREATE A

NEW POWER TO LEVY TARIFFS

The United States relies on the 1975 Yoshida decision

of the Court of Customs and Patent Appeals as support

for the claim that IEEPA Section 203(a)(1)(B) encompasses the imposition of tariffs. This reading of the

case misconstrues what the court said and ignores the

differences between pre-1977 TWEA, the statute at

issue there, and IEEPA.

A. The Structure of U.S. Trade Legislation

The Yoshida case was a dispute over the validity of

customs duties heard first by the Customs Court, the

predecessor of the Court of International Trade, and

then by the Court of Customs and Patent Appeals, the

predecessor of the Federal Circuit. These were specialist

courts focused on the validity of customs levies under

trade law. A brief review of that legislation reveals the

context and scope of the appellate court’s decision.

The imposition of customs duties by the United

States rests ultimately on tariff schedules enacted by

Congress pursuant to its constitutional authorities

under Article I, § 8, cls. 1 and 3. The Tariff Act of 1930

is the principal source of the current harmonized tariff

schedule. Other statutes have both amended that

schedule and, significantly, authorized the executive

to negotiate trade concessions with other states.

These concessions produce downward departures from

the harmonized schedule. Statutes authorizing these

concessions include the Reciprocal Trade Agreements

Act of 1934, Pub. L. No. 73-316, 48 Stat. 943, the Trade

Expansion Act of 1962, and the Trade Act of 1974.

The 1974 Act also created a procedure for legislative

approval of these concessions, the so-called “fast-track”

process. Previously, the executive had relied on the

1934 Act, which gave advance permission to negotiate

agreements and did not expressly require that the

executive to return to Congress for approval of agreements once reached. The 1974 Act made clear that,

going forward, the executive must obtain the consent

of Congress before any concession can take effect.

Trade Act of 1974, Title I., ch. 1, as amended 19 U.S.C.

§ 2111 et seq.10

Trade legislation also grants the executive the

authority to make upward revisions of the tariff

schedule in particular instances and for particular

countries, subject to specific requirements. Congress in

Treaties subject to the advice and consent of the Senate

remain an alternative method for ratification of trade concessions,

but this method has largely dropped out of use since adopting of

the 1934 Act.

1890 first authorized countervailing duties as a respond

to improper export subsidies, Zenith Radio Corp. v.

United States, 437 U.S. 443, 451 (1978). Congress first

authorized antidumping duties to respond to improper

pricing of imports through the Antidumping Act of

1916, 39 Stat. 798 (since repealed). Title VII of the

Tariff Act of 1930 regularized and systemized the

application of countervailing and antidumping duties.

19 U.S.C. § 1671 et seq. (as amended).

Over the years Congress has enacted other

authorities for upward revisions to the scheduled

tariffs. Some reflect trade concerns, such as sudden

surges of imports or unfair trade practices by exporting countries. Trade Act of 1974, title II, ch. 1, as

amended, 19 U.S.C. § 2251 et seq. (relief from import

competition); id. title III, as amended, 19 U.S.C. § 2411

et seq. (relief from unfair trade practices). Other

powers, such as to meet national security concerns

(Section 232 of the Trade Expansion Act of 1962) and

to address chronic imbalances of payments (Section

122 of the Trade Act of 1974), permit upward revisions

for foreign policy reasons. None of the upward revisions

that these provisions authorize is bound by the harmonized tariff schedule. Unlike IEEPA § 203(a)(1)(B), all

require specific administrative procedures and have

substantive limits.

B. The Yoshida Case

It was the shared conclusion of the first-instance

and appellate courts in Yoshida that the President

could not undo downward revisions of tariffs based on

trade concessions without legislative approval. Upward

revisions thus require a specific legislative grant, such

as those for proscribed export subsidies, dumping,

import surges, unfair trade practices or reasons of

national security. The Customs Court ruled that

TWEA did not add to this list. The Court of Customs

and Patent Appeals disagreed, but only in part. It held

that TWEA allowed the President to reverse trade

concessions that Congress had approved in advance,

but otherwise did not permit the imposition of tariffs.

1. Yoshida did not supersede tariff legislation

In 1971, President Nixon issued Proclamation 4074

to address a perceived crisis in trade balances. The

proclamation declared a national emergency based on

the nation’s growing trade deficit and declining gold

reserves. Among other measures, it imposed a ten

percent surcharge on all imports of dutiable goods. It

justified the measure under authorities provided to

the President by the Tariff Act of 1930 and the Trade

Expansion Act of 1962.

The proclamation also indicated that “other provisions

of law” might supplement the President’s authority.

Nowhere, however, did it refer to Section 5(b) of

TWEA as a basis for the measure. Rather, it expressly

excluded the application of any surcharge that would

exceed the duties provided by the uniform tariff

schedule. As a result, the new duties had force only to

the extent that they reversed past trade concessions

made under congressional grants of authority.

When an importer challenged the surcharge, the

United States cited Section 5(b)(2)(B) of TWEA as

among the sources of the President’s authority to

impose the surcharge. Yoshida Int’l, Inc. v. United

States, 378 F. Supp. 1155, 1157 (Cust. Ct. 1974). The

Customs Court ruled that TWEA did not suffice to

justify the levy. On appeal, the Court of Customs and

Patent Appeals reversed. It agreed with the lower

court that extant trade legislation did not grant the

President the power to roll back trade concessions

made pursuant to legislative authority. It found,

however, that TWEA did convey a limited power to

reverse prior concessions.

Rather than parsing the language of TWEA, its

historical background, or evidence of legislative purpose

reflected in specific text, the Court based its decision

on its general understanding of the exigencies of

national emergencies:

The delegation in § 5(b) is broad and extensive;

it could not have been otherwise if the

President were to have, within constitutional

boundaries, the flexibility required to meet

problems surrounding a national emergency

with the success desired by Congress. . . .

Congress has said what may be done with

respect to foreseeable events in the Tariff Act

[of 1930], the [Trade Expansion Act of 1962],

and in the Trade Act of 1974 (all of which are

in force) and has said what may be done with

respect to unforeseeable events in the TWEA.

In the latter, Congress necessarily intended a

grant of power adequate to deal with national

emergencies.

Yoshida, 526 F. 2d at 573, 578.

In spite of the perceived need for broad presidential

discretion, however, the court proceeded to defend

the surcharge as consistent with trade law. Under

Proclamation 4074, the new duty only rolled back past

concessions authorized by Congress. Even though the

court believed that trade law itself did not convey the

power to roll back, it regarded trade law’s ceiling on

upward revisions of tariffs as binding the President.

Whatever the precise bounds of Yoshida’s holding, it

cannot be read as approving an unlimited tariff

authority based on the term “regulate” in Section

5(b)(1)(B) of TWEA. To the contrary, the court went

out of its way to reconcile the duty imposed by

Proclamation 4074 with existing trade legislation, in

particular the legislative limits tracing back to the

Tariff Act of 1930. Yoshida did not endorse an

understanding of “regulate” that amounts to a blank

check to impose tariffs (and by clear implication, taxes)

in a national emergency.

2. Yoshida’s gloss on TWEA does not apply

to IEEPA

Even if an aggressive reading of Yoshida were to

generate an expansive interpretation of “regulate” in

Section 5(b)(1)(B) of TWEA, it does not follow that

IEEPA Section 203(a)(1)(B) permits the same interpretation. As discussed in Section I.B.3 of this brief,

IEEPA significantly revised this subsection by removing

the confiscation authority found in its TWEA counterpart.

Inferring a lesser power to impose tariffs from a great

power to confiscate property may be defensible. Once

the confiscatory power disappears, however, so does

the inference.

III. EXISTING TRADE LAW PROVIDES THE

PRESIDENT WITH AMPLE AUTHORITIES TO RESPOND TO INTERNATIONAL

EMERGENCIES

Interpreting IEEPA as not authorizing tariffs does

not rob the President of powers necessary to confront

international emergencies. Existing trade legislation,

in particular the Trade Expansion Act of 1962 and the

Trade Act of 1974, already give the President broad

authority to deploy tariffs to respond to challenges

from abroad. Indeed, the present administration has

based many of its new tariffs on these authorities,

rather than on IEEPA.

A. Trade Law Provides the President with

Substantial Discretion to Use Tariffs in

Response to International Challenges

Section 232 of the Trade Expansion Act of 1962 allows

the President to impose new tariffs, without regard to

the ceilings found in other parts of trade legislation, in

circumstances where imports threaten national security.

Federal Energy Agency v. Algonquin SNG, Inc., 426

U.S. 548 (1976) (reviewing authority and upholding

license fee). This provision requires the Secretary of

Commerce, in consultation with the Secretary of

Defense, to investigate the situation and propose

measures, including tariff increases. The President

has final authority to accept or reject the proposal.

Since 2018, U.S. Presidents of both parties have

made frequent use of Section 232. President Trump

based the latest round of national-security tariff increases

on this authority. Proclamation 10976 of September

29, 2025, 90 Fed. Reg. 48127 (Oct. 6, 2025). To date, the

lower courts have upheld all invocations of this power.

Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v.

United States, 63 F.4th 25 (Fed. Cir. 2023); PrimeSource

Building Products, Inc. v. United States, 59 F.4th 1255

(Fed. Cir. 2023); Transpacific Steel LLC v. United

States, 4 F.4th 1306 (Fed Cir. 2021).

Especially as deployed in the last seven years, the

Section 232 authority seems fully adequate to meet

the concerns to which the President’s IEEPA tariffs

respond. Indeed, IEEPA authorities apply only to

threats from abroad, while national security threats,

not otherwise defined in Section 232, might reasonably

be understood to include domestic ones. Restricting

emergency measures to uses of this provision would

impose no significant substantive constraint on the

President’s capacity to meet international challenges.

An additional discretionary power resides in the

President’s balance-of-payments powers. In response

to President Nixon’s Proclamation 4074, Section 122 of

the Trade Act of 1974 gave prospective approval to the

authority claimed by that measure.11 It authorizes the

imposition of a surcharge, capped at 15 percent,

whenever the President seeks to respond to a “large

and serious” balance-of-payments deficit. The provision

limits the duration of the proclamation to 150 days,

unless Congress extends the period.

No President has resorted to Section 122 since its

enactment. It remains, however, on the books as a

potential response to trade deficits that threaten the

nation’s currency reserves. It is a tariff tool that the

President can wield in cases where international financial

trends pose an economic threat to the nation, even if

not severe enough to put national security at risk.

B. Interpreting IEEPA as Authorizing Tariffs

Would Circumvent Congressional Limits

on the Use of Taxes and Tariffs as

Responses to International Emergencies

Given the discretion to impose tariffs that the

President already enjoys, allowing IEEPA to serve as

a substitute basis for tariffs is unnecessary. Such a

power would, however, create two significant problems.

First, it would open the door not only to new tariffs,

The Yoshida case did not involve the President’s prospective

authority under the Trade Act of 1974, but only the validity of the

tariffs imposed by the proclamation, which had lapsed by the time

of the litigation.

but also discretionary imposition of taxes inconsistent

with the Internal Revenue Code. Second, empowering

IEEPA would dispense with the procedural limits that

trade law applies to the authorities it provides.

As noted in Section I.B.3 of this brief, if the term

“regulate” in IEEPA Section 203(a)(1)(B) encompasses

tariffs, it necessarily includes taxes. The President,

upon declaring a national emergency, could imposes

taxes at rates and with conditions of his choosing on

transactions involving property in which a foreign

national has an interest. The President could, for

example, remove on a case-by-case basis the tax

exemption currently enjoyed by foreign governments,

including their sovereign wealth funds, on income

from U.S. investments. Internal Revenue Code, 26

U.S.C. § 892. Similarly, the President could raise the

taxes of particular foreign nationals who hold property

in the United States or engage in transactions with a

U.S. nexus, on the basis of a finding that the person

poses an “unusual and extraordinary threat” to U.S.

interests, whether security or economic.

The present state of U.S. tax law limits the ability of

the President to pick and choose the taxes people

must pay. Internal Revenue Code § 7217, 26 U.S.C.

(unlawful for President to intervene in tax investigations). Interpreting IEEPA as containing a broad and

discretionary taxation power, parallel to that for tariffs,

would undo these limits. Although one can imagine

situations in which such taxes would serve the

national interest, it is unlikely that Congress would

not want a say in the design of such a system.

Both the national security and balance-of-payments

authorities provided by trade law, although deferring

to the discretion of the President in many respects,

come with important limits. Section 232 requires prior

investigation and deliberation, engaging two Departments of the government, as a condition of the exercise

of this power. Section 122 sets a cap on the amount of

duty to be levied and limits the duration of the charge,

subject to congressional extension. These restrictions

would become irrelevant if the President had access to

IEEPA as an alternative base for imposing tariffs.

* * *

IEEPA does not bestow upon the President an

independent authority to impose tariffs. Neither the

war powers recognized by the Supreme Court before

World War I, nor the versions of TWEA in effect during

the two world wars, were used to justify such an

authority. Congress enacted IEEPA so as to limit to

declared wars the power to confiscate property for the

benefit of the United States, whether as an outright

taking or as a financial exaction. Later enactments, by

creating specific exceptions, confirmed this general

rule. Interpreting IEEPA as the United States proposes

would open the door to uncharted presidential powers

to levy taxes as well as tariffs without congressional

authorization.

CONCLUSION

This brief takes no position on the question of which

lower court has jurisdiction to address challenges to

the tariffs under review. Assuming jurisdiction exists,

however, the substantive portions of the judgments of

the District Court for Massachusetts and of the United

States Court of Appeals for the Federal Circuit as to

the invalidity of the tariffs imposed should be affirmed.

Respectfully submitted,

PAUL B. STEPHAN

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

580 Massie Rd.

Charlottesville, VA. 22903

(434) 924-7098

pbs@virginia.edu

Counsel for Amicus Curiae

October 22, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.