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

No. 25-250

In the

Supreme Court of the United States

DONALD J. TRUMP, et al.,

Petitioners,

v.

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

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Federal Circuit

BRIEF OF AMICUS CURIAE PETER W. SAGE

IN SUPPORT OF PRIVATE RESPONDENTS

Thad M. Guyer

T.M. Guyer & Friends, PC

116 Mistletoe Street

Medford, OR 97501

(206) 941-2869

thad@guyerayers.com

Counsel for Amicus Curiae

386905

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

STATEMENT OF INTEREST OF AMICUS

CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I.

T R A DE A N D TA RI F F D OM A I N:

CONGRESSIONAL AUTHORITY . . . . . . . . . . 8

A. The Constitution Grants Congress

Exclusive Authority Over Trade and

Tariffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Early American Tariff Policy and

Unwavering Congressional Control . . . . . . 10

C. The Separation of Powers Requires

Congressional Control Over Trade

Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. T H E F E D E R A L J U D I C I A R Y :

PRO T ECTING A RTICLE III

INDEPENDENCE . . . . . . . . . . . . . . . . . . . . . . . 12

A. The Maryland Judges vs. the President . . . 12

B. Er e z R e u ve n i ’s W h i s t le blo w e r

Retaliation: Executive Overreach

in Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ii

Table of Contents

Page

C. Congressional Authority Over the

Judiciary: Constitutional Design and

Historical Practice . . . . . . . . . . . . . . . . . . . . 15

D. The Executive Lacks Authority to

Nullify Judicial Offices or Systems

Created by Congress . . . . . . . . . . . . . . . . . . 17

E. Policy Implications and Contemporary

Challenges for the Judiciary . . . . . . . . . . . . 18

III. THE CIVIL SERVICE DOMAIN OF

CONGRESSIONAL AUTHORITY . . . . . . . . . 18

A. The Early Republic: A De Facto

Merit System and the Emergence

of Patronage . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. T h e P e n d l e t o n A c t o f 1 8 8 3 :

Establishing a Merit-Based System

and Congressional Control . . . . . . . . . . . . . 20

C. Modern Developments and the Civil

Service Reform Act of 1978 . . . . . . . . . . . . 20

D. W h i s t l e b l o w e r P r o t e c t i o n s

a s a S t r u c t u r a l S a fe g u a r d o f

Congressional Intent . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iii

TABLE OF CITED AUTHORITIES

Page

CASES:

Abrego Garcia v. Noem,

No. 25-cv-951 (D. Md.) . . . . . . . . . . . . . . . . . . . . . . . . 13

Arnett v. Kennedy,

416 U.S. 134 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Biden v. Nebraska,

600 U.S. 477 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Bowsher v. Synar,

478 U.S. 714 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Dept of Homeland Sec. v. MacLean,

574 U.S. 383 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Dred Scott v. Sandford,

60 U.S. 393 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

INS v. Chadha,

462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Korematsu v. United States,

323 U.S. 214 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Massachusetts v. Mellon,

262 U.S. 447, 43 S. Ct. 597 (1923) . . . . . . . . . . . . . . . 10

Michelin Tire Corp. v. Wages,

423 U.S. 276 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iv

Cited Authorities

Page

Noem v. Abrego Garcia,

145 S.Ct. 1017 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Plaut v. Spendthrift Farm,

514 U.S. 211 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States ex rel. Hoover v. Franzen,

669 F.2d 433 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . 11

United States of America v. Chief Judge

George L. Russell III, et al.,

No. 1:25-cv-02029 (D. Md.), filed June 24, 2025 . . . 12

United States v. Lopez,

514 U.S. 549 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Russell,

No. 1:25-CV-02029, 2025 WL 2448955

(D. Md. Aug. 26, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. CONSTITUTION:

Article I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Article I, Section 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Article I, Section 8, Clause 1 . . . . . . . . . . . . . . . . . . . . . . . 8

Article I, Section 8, Clause 3 . . . . . . . . . . . . . . . . . . . . . . . 8

v

Cited Authorities

Page

Article I, Section 8, Clause 9 . . . . . . . . . . . . . . . . . . . . . . 15

Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12, 13, 15

Article III, Section 1 . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

STATUTES AND OTHER AUTHORITIES:

5 U.S.C. § 1101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5 U.S.C. § 2302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

5 U.S.C. § 2302(b)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

5 U.S.C. § 7211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

50 U.S.C. §§ 1701–1710 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

50 U.S.C. § 1701(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

An Act for Imposing More Specific Duties

on the Importation of Certain A rticles,

Eighth Congress (Mar. 27, 1804), https://

www.govinfo.gov/content/pkg/STATUTE-2/

pdf/STATUTE-2-Pg298-2.pdf#page=1 . . . . . . . . . . 6

Willis Ryder A rnold and Meghna

Chakrabarti, “How the civil service system

changed American government” (2025) . . . . . . . . . . 20

vi

Cited Authorities

Page

Civil Service Reform Act of 1978 . . . . . . . . . . . . . . . . 4, 20

DOJ Atty Firing Highlights Tension Between

2 Ethical Duties”, Law360 (June 25, 2025) . . . . . . . 14

Federalist No. 12 (Alexander Hamilton) . . . . . . . . . . . . . 9

Federalist No. 22 (Alexander Hamilton) . . . . . . . . . . . . 10

Federalist No. 35 (Alexander Hamilton) . . . . . . . . . . 9, 11

Federalist No. 42 (James Madison) . . . . . . . . . . . . . . . . . 9

Federalist No. 47 (James Madison) . . . . . . . . . . . . . . 9, 16

Federalist No. 48 (James Madison) . . . . . . . . . . . . . . 9, 16

Hamilton: Opinion to Washington, Hamilton’s

Works, Lodge’s ed., III . . . . . . . . . . . . . . . . . . . . . . . . 10

Alexander Hamilton, Report on the Subject

of Manufactures (Dec. 5, 1791), https://

con st it ut ion.org / 2 -A ut hor s /a h / r pt _

manufactures.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10

“History of the Federal Civil Service, 1789 to

the Present”, United States Civil Service

Commission (1941), https://books.google.com.

vn/books?id=dwbvhZnJT9sC&printsec=fro

ntcover&hl=vi&source=gbs_ge_summary_

r&cad=0#v=onepage&q&f=false . . . . . . . . . . . . . . 19

vii

Cited Authorities

Page

Landmark Legislation: Judiciary Act of 1789,

Federal Judicial Center (1992) . . . . . . . . . . . . . . . . . 16

James Madison, Import and Tonnage Duties

(Apr. 9, 1789), Founders Online, Nat’l Archives,

https://founders.archives.gov/documents/

Madison/01-12-02-0047 . . . . . . . . . . . . . . . . . . . . . . . . . 6

Model Rules of Professional Conduct, 3.3(a)(1) . . . . . . . 14

Frederick C. Mosher, “Democracy and the Public

Service” (1982), https://archive.org/details/

democracypublic00mosh . . . . . . . . . . . . . . . . . . . . . . 19

Origins of the Federal Judiciary: Essays on

the Judiciary Act of 1789, Maeva Marcus,

ed. New York: Oxford University Press,

1992. https://www.fjc.gov/history/legislation/

landmark-leg islation-judiciary-act-1789 0#:~:text=In%20the%20Judiciary%20Act%20

of%201789%2C%20the%20First,inferior%20

cour ts%2C%2 0the%2 0Cong ress%2 0

instituted%20a%20three-part%20judiciary . . . . 16-17

Pendleton Civil Service Act of 1883 . . . . . . . . . . . . . 18, 20

Joseph Postell, “From Merit to Expertise and

Back: The Evolution of the U.S. Civil Service

System” (2020), https://administrativestate.

gmu.edu/wp-content/uploads/2020/02/PostellFrom-Merit-to-Expertise-and-Back.pdf . . . . . . . . . 21

viii

Cited Authorities

Page

Rights of the British Colonies Asserted and

Proved, in The Collected Political Writings

of James Otis (Richard A. Samuelson ed.,

Liberty Fund 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Tariff of 1789 (Hamilton Tariff), First Congress

(July 4, 1789), https://fraser.stlouisfed.org/

title/tariff-1789-hamilton-tariff-5884 . . . . . . . . . . . 6, 9

Tr ump Admin. Suspends Lawyer in Case

of Maryland Man Mistakenly Depor ted

for Failing to ‘Zealously Advocate’, Fox

News (Apr. 5, 2025), https://www.foxnews.

com /pol it ics /t r u mp -a d m i n- suspends law yer- case-mar yland-man-mistakenlydeported-failing-zealously-advocate?msockid

=09b67f5c2f3e6d8d20a26a302efe6c0c . . . . . . . . . . 14

U. S. Senate Committee on the Judiciar y,

Protected Whistleblower Disclosure of Erez

Reuveni Regarding Violation of Laws, Rules

& Regulations, Abuse of Authority, and

Substantial and Specific Danger to Health

and Safety at the Department of Justice

(June 24, 2025), https://www.judiciary.senate.

gov/imo/media/doc/06-24-2025_-_Protected_

Whistleblower_Disclosure_of_Erez_Reuveni_

Redacted.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Up Close with Peter Sage, https://peterwsage.

blogspot.com/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ix

Cited Authorities

Page

Leonard White, “The Federalists: A Study

in Administrative History” (1947), https://

a rchive.org /det a i ls /federa l ists, ht tp s: //

archive.org/details/federalistsstudy0000leon/

page/n5/mode/2up . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

1

STATEMENT OF INTEREST OF

AMICUS CURIAE1

Peter W. Sage, age 76, is a retired professional

who operates a small farm and vineyard in Southern

Oregon. He lives primarily on Social Security and modest

personal investments and expects to receive income from

his vineyard. He is financially vulnerable to extra costs

imposed by tariffs, as well as to harm from losing access

to foreign markets for his wine in the face of retaliatory

tariffs. Mr. Sage brought these concerns to the attention

of his congressional representatives. The tariff on wine

bottles dramatically reduces the margin on sales of

inventory-clearing wines at discount venues such as

Costco and Trader Joe’s, where margins were already

thin. Those sales are critical to a healthy wine industry.

Mr. Sage relies on the constitutional structure of

the United States, specifically on the separation of

powers and Congress’s exclusive authority to impose

tariffs, to protect his financial interests. He depends

on the stability of congressional action, rather than

the unilateral deal-making of an executive, to ensure a

reliable supply chain and stable markets for his vineyard’s

products. Congressional authority over tariffs provides

him with practical access to decision-makers in the House

and Senate who understand and represent the needs of

small agricultural producers in Southern Oregon like

himself. 2

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

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

or its counsel or contributed money intended to fund the preparing

or submission of this brief.

2. Mr. Sage depends on a competent, merit-based federal

civil service to safeguard his business, well-being and that of his

2

In addition to these concrete economic concerns, Mr.

Sage has, for almost a decade, written about executive

overreach in his political blog, Up Close with Peter

Sage, 3 where he reports on in-person interactions with

presidential candidates in New Hampshire and Iowa. Until

recently, Mr. Sage’s warnings about unchecked executive

power were largely theoretical. However, he now fears

targeted retaliation by the President of the United States,

including politically motivated IRS audits, placement on

a no-fly list, interference with the naturalization status

of family members, and harassment of lawfully present

Hispanic workers at his vineyard. These are no longer

abstract possibilities; they have become tangible concerns

in light of recent examples of executive retaliation against

critics. 4 Mr. Sage is concerned about the erosion of

boundaries and the dismantling of checks and balances.

community. He relies on the National Weather Service for accurate

forecasts to protect his crops from frost damage and to provide

critical data for managing and responding to regional forest fires,

which at times leave his region immersed in hazardous smoke for

weeks. He depends on career professionals at the Department

of Health and Human Services to administer his Social Security

and Medicare benefits fairly and accurately. He also relies on the

integrity of financial regulators, including the SEC and the Treasury

Department, to protect his investments from fraud, bank failures,

and market instability. Political interference in these agencies and

the courts threatens Mr. Sage’s livelihood and erodes public trust

in essential governmental functions.

3. https://peterwsage.blogspot.com/

4. Mr. Sage notes with alarm that the Executive Department

recently filed lawsuits against every District Court judge in the state

of Maryland — an act that is unprecedented and demonstrates a

shocking lack of respect for judicial review of executive actions.

United States v. Russell, No. 1:25-CV-02029, 2025 WL 2448955 (D.

Md. Aug. 26, 2025).

3

These threats are manifesting now, in real time. Each

breach of constitutional boundaries, including, in this

case, the circumvention of Congress’s authority over

tariffs, normalizes further encroachments and weakens

the framework of limited government.

SUMMARY OF ARGUMENT

The International Emergency Economic Powers Act

(IEEPA) does not explicitly authorize the imposition of

tariffs, particularly not the expansive authority claimed

in this instance. In Mr. Sage’s view, interpreting IEEPA

to grant such unlimited power to impose taxes on the

American public would represent the most evident

unconstitutional transfer of legislative authority in his

lifetime. The President seeks to undermine the core

constitutional principle that only Congress holds the

power to regulate commerce and levy duties under

Article I, Section 8. Mr. Sage can talk to his elected

representatives, but not to the President. His economic

interests as a small vineyard operator in Southern Oregon

are directly threatened by cutting Congress out of its role

in regulating tariffs.

Unstable tariffs and potential retaliatory measures

from trading partners can raise costs and cut off market

access. Mr. Sage actively protects his interests by

engaging with his Oregon Senators and Congressman,

whom he can readily contact for representation. In turn,

his Oregon representatives can politically horse trade

with representatives in sister states, they can bargain and

barter for their constituencies seeking win-win outcomes.

Mr. Sage wants tariffs to be controlled exactly as the

constitution provides. Accordingly, the Supreme Court

should affirm the lower court’s decision.

4

This brief frames Mr. Sage’s argument around

three statutory domains where Congress has exercised

exclusive authority: tariffs, the judiciary, and the civil

service. These domains, grounded in Article I and shaped

by generations of legislative action, are the constitutional

guardrails preventing executive power from subsuming

the entire machinery of government. Each domain

illustrates how Congress constructs, funds, and governs

essential systems—setting tariffs, establishing courts,

and protecting a merit-based federal workforce. When

the Executive breaches these statutory barriers, as in

the imposition of global tariffs without authorization or

in suing Maryland’s entire district bench, the separation

of powers itself is imperiled.

The lower courts correctly determined that the

President’s imposition of broad Worldwide, Retaliatory,

and Trafficking Tariffs under the International Emergency

Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701–1710,

was at least in substantial part an unconstitutional

exercise of executive power, exceeding congressional

authorization and violating the separation of powers.

Mr. Sage contends that unchecked executive authority

threatens Congress’s exclusive Article I powers over trade

and taxation and undermines the meticulously constructed

statutory protections for the federal civil service under

the Civil Service Reform Act (CSRA), 5 U.S.C. §§ 1101

et seq., as well as the indispensable independence of

the federal judiciary under Article III. This brief will

demonstrate that executive overreach in any of these

domains constitutes a profound violation of the separation

of powers, undermines democratic accountability, and

erodes the rule of law.

5

The generation that carried out the American

Revolution and drafted the Constitution asserted that

taxation without representation was tyranny. James Otis

of Massachusetts wrote:

The very act of taxing, exercised over those

who are not represented, appears to me to be

depriving them of one of their most essential

rights, as freemen; and if continued, seems to

be in effect an entire disfranchisement of every

civil right.

See, Rights of the British Colonies Asserted and Proved,

in The Collected Political Writings of James Otis (Richard

A. Samuelson ed., Liberty Fund 2015). Tariffs were a

point of controversy at the nation’s founding. Alexander

Hamilton sought to persuade Congress of the value of

protecting infant industries with tariffs, as he outlined in

his Report on the Subject of Manufactures. See, Alexander

Hamilton, Report on the Subject of Manufactures (Dec.

5, 1791). James Madison, a member of the House of

Representatives, spoke on the floor of the House of the

need to consider the concerns of different constituencies:

That it will be necessary on the one hand,

to weigh and regard the sentiments of the

gentlemen from the different parts of the

United States; but on the other hand, we

must limit our consideration on this head, and

notwithstanding all the deference and respect

we pay to those sentiments, we must consider

the general interest of the union, for this is as

much every gentleman’s duty to consider as is

the local or state interest—and any system of

6

impost that this committee will adopt, must be

founded on the principles of mutual concession.

James Madison, Import and Tonnage Duties (Apr. 9,

1789), Founders Online, Nat’l Archives. 5 The First

Congress immediately got to work on a tariff. The Tariff

of 1789 advantaged and disadvantaged certain goods. For

example: Madeira wine, 18 cents a gallon; all other wines,

10 cents a gallon; brown sugars, one cent a pound; loaf

sugars, three cents a pound; tallow candles, two cents a

pound; wax or spermaceti candles, six cents a pound. See,

Tariff of 1789 (Hamilton Tariff), First Congress (July 4,

1789).6

In 1804, Congress amended the Act of 1789. It added

a list of items exempted from tariffs: rags of linen; cotton,

woolen, and hempen cloth; bristles of swine; regulus of

antimony; unwrought clay; unwrought burr stones; and

the bark of the cork tree. See, An Act for Imposing More

Specific Duties on the Importation of Certain Articles,

Eighth Congress (Mar. 27, 1804).7 Mr. Sage may not

succeed in eliminating tariffs on wine bottles; he expects

that he will not. He recognizes that his is a particular

5. Import and Tonnage Duties, [9 April] 1789,” Founders

Online, National Archives, https://founders.archives.gov/documents/

Madison/01-12-02-0047. [Original source: The Papers of James

Madison, vol. 12, 2 March 1789 – 20 January 1790 and supplement

24 October 1775 – 24 January 1789, ed. Charles F. Hobson and Robert

A. Rutland. Charlottesville: University Press of Virginia, 1979, pp.

69–74.]

6. https://fraser.stlouisfed.org/title/tariff-1789-hamiltontariff-5884

7. https://w w w.govinfo.gov/content/pkg/STATUTE-2/pdf/

STATUTE-2-Pg298-2.pdf#page=1

7

interest, but not one more particular than the interest of

people making use of bristles of swine in 1804, and that

particular problem found relief in legislation. Tariffs

injure different people in different ways, which is why

Mr. Sage considers it both constitutional and reasonable

that Congress—an institution that combines and melds

a multiplicity of interests—is the body given authority to

weigh and negotiate the various claims of people affected

by a tariff.

Mr. Sage argues that the people who hear his concerns

must be decision-makers, not bystanders, for there to

be representation. He recognizes that congressional

legislation can be messy and full of special cases, but that

is a feature, not a bug; the country itself is messy and full

of special cases.

Mr. Sage has both a private and public interest in

ending the practice of the government using pretexts

of war powers or emergencies to remove his right of

representation on tax matters. Pretextual emergencies,

if allowed by the courts to stand, create an unchecked

executive. It is dangerous behavior and precedent. Mr.

Sage considers this a strong place to draw the line,

since the notion that taxation requires representation is

both written into the Constitution and deeply rooted in

American history.

The unchecked use of tariff authority by the Executive

risks transforming them into instruments of domestic

retribution, selectively harming particular regions,

industries, or groups of citizens within our own borders.

Targeting a state or a sector gives the executive the

power to punish an area or industry unmoored from the

representational process that was designed to restrain

8

such targeting. Every member of Congress must face the

political consequences of tariff policy at home; a secondterm president, by contrast, faces none. That insulation

from accountability makes the unilateral exercise of tariff

power especially dangerous.

The only thing worse than the messy, interest-laden,

compromise-driven process of Congress exercising its

constitutional tariff powers is Congress not exercising

them at all. Disorder in legislation is a symptom of

democratic engagement; order imposed by a single

will is a symptom of tyranny. The Framers understood

that the taxing power, including tariffs, belongs to the

people’s representatives precisely because its burdens

fall unevenly. Mr. Sage therefore asks this Court to

reaffirm the principle that taxation—by whatever name,

and however imposed—must remain under the control of

those answerable to the people.

ARGUMENT

I.

TRADE AND TARIFF DOMAIN:

CONGRESSIONAL AUTHORITY

A.

The Constitution Grants Congress Exclusive

Authority Over Trade and Tariffs

The authority to impose tariffs is a cornerstone of

congressional power within the U.S. Constitution, which

vests Congress with exclusive authority over trade and

tariffs, ensuring democratic accountability in economic

policy. Article I, Section 8, Clause 3 grants Congress the

power to “regulate Commerce with foreign Nations,” while

Clause 1 authorizes Congress to “lay and collect Taxes,

Duties, Imposts and Excises.” The Necessary and Proper

9

Clause enables Congress to enact all laws “necessary

and proper” for these powers, ensuring comprehensive

legislative oversight. The Tenth Amendment clarifies

that powers not delegated to the federal government are

“reserved to the States respectively, or to the people,”

precluding executive authority over trade and taxation.

This design ref lects the Framers’ intent to ensure

accountability in economic policy through a balanced

legislative process.

The assignment of tariff authority to Congress was

a response to the economic chaos under the Articles of

Confederation, where states imposed conflicting tariffs,

leading to commercial disputes and a weakened national

economy. The Framers recognized that a unified economic

policy was essential for national prosperity and stability.

Alexander Hamilton, a key architect of the constitutional

order, articulated the need for centralized tariff authority

in The Federalist Papers. In Federalist No. 12, he

emphasized that Congress’s power to “lay and collect...

Duties, Imposts and Excises” was crucial for efficient

revenue collection and preventing smuggling. He noted

that state-level tariffs led to economic fragmentation,

undermining national revenue and coherence. Michelin

Tire Corp. v. Wages, 423 U.S. 276, 291 n.12 (1976).

Hamilton argued in Federalist No. 35 that tariffs

necessitated legislative deliberation to balance competing

regional interests, ensuring national policy reflected

broad consensus. James Madison, in Federalist No. 42,

clarified that the commerce clause aimed for uniform

tariff policies to prevent destructive interstate conflicts

and promote national interests. Madison’s warnings in

Federalist Nos. 47 and 48 against consolidating legislative

and executive powers, cautioning that executive overreach

10

could undermine essential checks and balances and result

in despotic government. Plaut v. Spendthrift Farm,

514 U.S. 211, 241 (1995). The Framers’ design reflects

a deliberate choice to vest tariff authority in Congress,

ensuring trade policies reflect diverse interests through

representative debate and legislative compromise. This

structure stands in stark contrast to monarchical systems,

where unilateral executive control over trade often served

narrow, arbitrary interests, a danger Hamilton explicitly

highlighted in Federalist No. 22.

B. Early American Tariff Policy and Unwavering

Congressional Control

The allocation of tariff authority to Congress was

decisively operationalized in the early years of the

republic, establishing a precedent that has endured.

The Tariff of 1789, one of the first acts of the First

Congress, imposed duties on imports to generate revenue

and protect American industries. This act established

congressional control, as lawmakers debated specific rates

and exemptions, balancing regional interests. Hamilton’s

Report on Manufactures (1791) solidified this legislative

role, advocating for protective tariffs to foster industrial

development and economic self-sufficiency. 8 His report

8. https://constitution.org/2-Authors/ah/rpt_manufactures.pdf.

From the earliest days of our country’s existence statesmen have

recognized in their public utterances this broad scope of the power

to appropriate for the public welfare; Congress has recognized it

in innumerable appropriations of money and property aggregating

in value billions of dollars; and those appropriations have never

been successfully challenged in this Court. Hamilton: Opinion to

Washington, Hamilton’s Works, Lodge’s ed., III, pp. 179, 217; Report

on Manufactures, ibid., pp. 294, 371, 372. Massachusetts v. Mellon,

262 U.S. 447, 478, 43 S. Ct. 597, 598 (1923)

11

underscored the necessity of legislative deliberation to

weigh long-term benefits against short-term consumer

costs, reinforcing Congress’s role as the primary arbiter

of national tariff policy.

The enduring nature of congressional control over

tariffs was tested during the “Tariff of Abominations” in

1828, United States ex rel. Hoover v. Franzen, 669 F.2d

433, 443 n.21 (7th Cir. 1982) igniting the Nullification

Crisis. South Carolina opposed high duties favoring

Northern industries, perceived as detrimental to Southern

agriculture. President Andrew Jackson defended federal

authority, but the crisis was resolved through legislative

compromise: the Tariff of 1833, which gradually reduced

rates. This demonstrated Congress’s capacity to adjust

tariffs in response to economic realities and political

pressures, reaffirming its central role in national trade

policy, balancing revenue needs and regional harmony,

as envisioned by Hamilton in Federalist No. 35. United

States v. Lopez, 514 U.S. 549, 590 (1995)

C.

The Separation of Powers Requires

Congressional Control Over Trade Policy

The separation of powers is a cornerstone of American

governance, ensuring that no branch usurps the functions

of another. INS v. Chadha, 462 U.S. 919, 951 (1983),

rejected claims of convenience to bypass this structure,

holding that the Constitution’s division of powers is

non-negotiable. Biden v. Nebraska, 600 U.S. 477,

506–08 (2023), reinforced the major questions doctrine,

requiring clear congressional authorization for executive

actions with significant economic and political impact. The

V.O.S. court applied this doctrine, holding that IEEPA’s

12

authorities are limited to unusual and extraordinary

threats and that the tariffs, justified by persistent trade

deficits, did not meet this threshold. Slip Op. 25-66, at 9

(quoting 50 U.S.C. § 1701(b)).

II. THE FEDERAL JUDICIARY: PROTECTING

ARTICLE III INDEPENDENCE

A.

The Maryland Judges vs. the President

The Maryland litigation exemplifies the constitutional

crisis that inevitably follows from unchecked executive

power. In United States of America v. Chief Judge George

L. Russell III, et al., No. 1:25-cv-02029 (D. Md.), filed June

24, 2025, the Executive Branch launched an unprecedented

attack on judicial independence by suing every federal

judge in Maryland’s district court. This extraordinary

action demonstrates precisely how executive overreach in

one constitutional domain, such as the tariff authority at

issue here, spreads inexorably to threaten all institutional

checks on presidential power.

The administration’s lawsuit targets Chief Judge

Russell’s standing orders that provide automatic two-day

stays of removal proceedings when immigration detainees

file habeas corpus petitions. These modest due process

protections, designed to address the influx of after-hours

habeas petitions that created scheduling difficulties

and resulted in hurried and frustrating hearings,

triggered a ferocious executive response. Rather than

pursuing normal appellate remedies, the administration

characterized routine judicial oversight as lawless judicial

overreach and demanded that all Maryland judges recuse

themselves from the case.

13

The Executive’s characterization of this dispute

reveals its broader constitutional strategy. Attorney

General Bondi declared that judicial orders blocking

executive actions undermine the democratic process and

cannot be allowed to stand. The Justice Department’s

complaint asserts that every unlawful order entered by

district courts robs the executive branch of its most scarce

resource—time to put policies into effect—and diminishes

the votes of citizens who elected the head of the executive

branch. This theory treats electoral victories as licenses

to override constitutional limitations, effectively arguing

that democratic mandates supersede separation of powers

constraints.

The constitutional theory underlying this judicial

intimidation campaign mirrors exactly the dangerous

precedent that would flow from accepting unlimited

executive tariff authority. Just as the administration

claims inherent power to impose tar iffs w ithout

congressional authorization, it now claims authority to

intimidate judges who exercise their Article III functions.

Both assertions rest on the same constitutional fallacy:

that executive power, when democratically legitimated,

recognizes no institutional boundaries.

B. Erez Reuveni’s Whistleblower Retaliation:

Executive Overreach in Action

The executive branch’s retaliation against Erez

Reuveni, former Acting Deputy Director of the Department

of Justice’s (DOJ) Office of Immigration Litigation (OIL),

further exemplifies the dangerous overreach threatening

Article III independence. In Abrego Garcia v. Noem,

No. 25-cv-951 (D. Md.), Mr. Reuveni defended the

government’s unlawful removal of Abrego Garcia to El

14

Salvador’s Center for Terrorism Confinement (CECOT)

on March 15, 2025, despite a 2019 Immigration Judge

order prohibiting deportation to El Salvador due to a clear

probability of future persecution. (Doc. 21, No. 25-cv-951).

The government conceded this was an “administrative

error”, yet failed to rectify it, prompting Judge Paula

Xinis to order Mr. Abrego Garcia’s return by April 7,

2025. See, DOJ Atty Firing Highlights Tension Between

2 Ethical Duties”, Law360 (June 25, 2025). The Supreme

Court partially upheld this order, vacating the deadline

but mandating due process compliance. Noem v. Abrego

Garcia, 145 S.Ct. 1017 (2025).

On April 4, 2025, Mr. Reuveni candidly informed

Judge Xinis that the removal was erroneous, mirroring

the government’s own declaration by ICE official Robert

Cerna. That evening, DOJ leadership, including Senior

Counselor James Percival, directed him to file an appeal

brief misrepresenting facts about the removal and alleging

unsubstantiated MS-13 ties, which lacked evidentiary

support. Citing his ethical obligations under Rule 3.3(a)

(1) of the Model Rules of Professional Conduct, which

prohibits false statements to a tribunal, Mr. Reuveni

refused. On April 5, he was placed on administrative leave

for his alleged failure to zealously advocate and engaging

in conduct prejudicial to his client, and was terminated

on April 11, 2025. See, Trump Admin. Suspends Lawyer

in Case of Maryland Man Mistakenly Deported for

Failing to ‘Zealously Advocate’, Fox News (Apr. 5, 2025).9

His whistleblower complaint, filed with the Office of

Special Counsel and DOJ’s Office of Inspector General,

9. https://www.foxnews.com/politics/trump-admin-suspendslawyer-case-maryland-man-mistakenly-deported-failing-zealouslyadvocate?msockid=09b67f5c2f3e6d8d20a26a302efe6c0c

15

alleges retaliation for his protected disclosures under the

Whistleblower Protection Act (WPA), 5 U.S.C. § 2302,

including his refusal to obey illegal orders and reports of

DOJ’s non-compliance with court orders. See U.S. Senate

Committee on the Judiciary, Protected Whistleblower

Disclosure of Erez Reuveni Regarding Violation of

Laws, Rules & Regulations, Abuse of Authority, and

Substantial and Specific Danger to Health and Safety at

the Department of Justice (June 24, 2025).10 This stance

mirrors the DOJ’s attack on the District of Maryland’s

judicial independence, treating Article III as an obstacle

to executive will.

C.

Congressional Authority Over the Judiciary:

Constitutional Design and Historical Practice

The authority to establish the federal judiciary,

pa r ticula rly distr ict cou r ts, is a cor nerstone of

congressional power within the U.S. Constitution. This

power is vested in Congress through Article III, Section

1, which grants discretion to “ordain and establish”

inferior courts, and Article I, Section 8, Clause 9, which

empowers Congress to “constitute Tribunals inferior to

the supreme Court.” This design reflects the Framers’

intent to ensure an independent judiciary, safeguarding

the separation of powers.

The Constitution’s assignment of authority over the

federal judiciary to Congress addresses the weaknesses

of the judicial system under the Articles of Confederation.

10. https://www.judiciary.senate.gov/imo/media/doc/06-242025_-_Protected_Whistleblower_Disclosure_of_Erez_Reuveni_

Redacted.pdf

16

The Framers recognized that a unified and independent

judiciary was essential for national cohesion and protection

of individual rights. Article III, Section 1.

James Madison articulated the rationale for the

separation of powers in The Federalist No. 47 and

No. 48, warning against consolidating powers, which he

deemed the definition of tyranny. Allowing the executive

to dictate the structure of the courts would undermine

essential checks and balances. The Framers deliberately

vested authority over the judiciary in Congress to ensure

that federal courts remain an independent, co-equal

branch, accountable through legislative oversight, not

executive whim.

The theoretical allocation of judicial authority to

Congress was quickly operationalized in the early years

of the American republic. The Judiciary Act of 1789,

one of the first acts of the First Congress, exemplified

this assertion of congressional power. This legislation

organized a federal judiciary that the Constitution had

only outlined, creating a three-part system: a Supreme

Court, U.S. district courts, and U.S. circuit courts. The

Supreme Court included a Chief Justice and five associate

justices. Federal judges presided over district courts

in each state, which heard admiralty, maritime, and

some minor civil and criminal cases. The circuit courts

functioned as principal trial courts with limited appellate

jurisdiction, presided over by two Supreme Court justices

and the local district judge. presiding in these courts. See,

Landmark Legislation: Judiciary Act of 1789, Federal

Judicial Center (1992).11 This act established a precedent

11. From Origins of the Federal Judiciary: Essays on the

Judiciary Act of 1789, Maeva Marcus, ed. New York: Oxford

17

for congressional control, defining the jurisdiction and

operational aspects of federal courts.

Congress has continuously adapted the federal judiciary

to meet evolving national needs, demonstrating exclusive

authority over judicial structure and administration.

The codification of federal statutes in Title 28 of the

United States Code aimed to improve organization and

accessibility of these laws. The Judicial Code of 1948

created the basic structure of Title 28 that exists today,

regularizing court names and making substantive changes

related to jurisdiction and venue.

D.

The Executive Lacks Authority to Nullify

Judicial Offices or Systems Created by Congress

Attempts to defund essential judicial systems or

disrupt operations would violate the separation of powers

just as with tariff control by Congress. Bowsher v. Synar,

478 U.S. 714, 730 (1986), warned against actions rendering

one branch subservient to another. This principle applies

to executive interference with judicial functions. The

judiciary’s independence is critical to the rule of law,

ensuring impartial adjudication. Executive attempts

to disrupt judicial systems would render the judiciary

subservient, mirroring the unconstitutional overreach

rejected in Bowsher.

University Press, 1992. https://www.fjc.gov/history/legislation/

landmark-legislation-judiciary-act-1789-0#:~:text=In%20the%20

Judiciary%20Act%20of%201789%2C%20the%20First,inferior%20

courts%2C%20the%20Congress%20instituted%20a%20threepart%20judiciary.

18

E. Policy Implications and Contemporar y

Challenges for the Judiciary

Any erosion of congressional authority over the

judiciary at the hands of the executive carries profound

implications for governance and individual liberties.

The independence of the judiciary is fundamental to the

impartial application of laws and maintaining a stable

constitutional order. Legislative oversight is essential

to ensure that the administration of justice serves the

public good, free from political interference. Unilateral

executive overreach risks prioritizing short-term political

goals over the integrity of the justice system. Attempts to

control judicial resources or access to court information

could undermine due process and create uncertainty for

litigants. Congress’s deliberative process ensures judicial

policies reflect diverse input and constitutional principles,

leading to stable outcomes.

III. THE CIVIL SERVICE DOMAIN OF

CONGRESSIONAL AUTHORITY

Over more than 140 years, Congress has built a meritbased system through landmark statutes, beginning with

the Pendleton Act of 1883 and continuing through the Civil

Service Reform Act and the Whistleblower Protection

Act. These enactments ensure impartial administration,

protect whistleblowers, and safeguard due process rights

for federal employees. Recent executive efforts threaten

this established structure.

19

A.

The Early Republic: A De Facto Merit System

and the Emergence of Patronage

In the early years of the United States, the federal

government operated under a de facto merit-based

system for administrative appointments. The first six

Presidents prioritized competence and integrity over

political patronage. Frederick Mosher characterizes this

period as “Government by Gentlemen,” noting President

Washington insisted that “fitness of character” should

guide nominations. This “fitness of character” was

not merely an abstract ideal; it was often “tempered

by a sagacious regard for geographic representation,”

a practical consideration vital for ensuring the new

government’s legitimacy and fostering national unity

by reflecting the diverse composition of the nascent

nation. Frederick C. Mosher, “Democracy and the Public

Service” (1982), at 60.12 See also, Leonard White, in “The

Federalists: A Study in Administrative History” (1947).13

However, the seeds of the patronage-driven spoils

system were sown early, even amidst meritocratic

ideals. As documented in “History of the Federal Civil

Service, 1789 to the Present” by the United States Civil

Service Commission (1941),14 at page 2, the informal

practice of “Senatorial courtesy” emerged. This custom

led Members of Congress to expect their advice on local

12. https://archive.org/details/democracypublic00mosh

13. https://archive.org/details/federalistsstudy0000leon/page/

n5/mode/2up

14. https://books.google.com.vn/books?id=dwbvhZnJT9sC&

printsec=frontcover&hl=vi&source=gbs_ge_summary_r&cad=0

#v=onepage&q&f=false

20

appointments to be accepted. The election of Andrew

Jackson in 1828 marked the full embrace of the spoils

system, characterized by the slogan “To the Victor Belong

the Spoils!” coined by Senator William L. Marcy in 1832.

Id. at 19-20.

B. The Pendleton Act of 1883: Establishing

a Merit-Based System and Congressional

Control

The catalyst for decisive action came with the tragic

assassination of President James A. Garfield in 1881 by

Charles Guiteau, a disgruntled office seeker who believed

he was owed a government position. As recounted in

Arnett v. Kennedy, 416 U.S. 134, 148 (1974), the public

outrage over this profound tragedy brought to a head

the widespread sentiment for civil service reform,

transforming a long-standing grievance into an urgent

national imperative. This singular event provided the

necessary political momentum for Congress to overcome

entrenched opposition and enact the landmark Pendleton

Civil Service Act of 1883. This Act fundamentally

reshaped federal employment, establishing a non-partisan

civil service and shifting appointments from a system of

political patronage to one based on merit. Willis Ryder

Arnold and Meghna Chakrabarti, “How the civil service

system changed American government” (2025), at 1.

C.

Modern Developments and the Civil Service

Reform Act of 1978

The federal civil service evolved throughout the 20th

century, adapting to new challenges. The New Deal era

saw a temporary decline in classified employees due to

the creation of “emergency” agencies but ultimately

21

led to further expansion and debate over executive

accountability. Joseph Postell, “From Merit to Expertise

and Back: The Evolution of the U.S. Civil Service System”

(2020), at 18-19.15

D.

Whistleblower Protections as a Structural

Safeguard of Congressional Intent

Congress’s whistleblower protections under the

Whistleblower Protection Act (WPA), 5 U.S.C. § 2302(b)(8),

and the right of federal employees to communicate with

Congress, 5 U.S.C. § 7211, are essential checks designed to

ensure transparency and prevent abuses of power. These

protections are integral to the civil service framework,

designed by Congress to safeguard public integrity. In

Dept of Homeland Sec. v. MacLean, 574 U.S. 383, 394

(2015), the Supreme Court held that executive agencies

cannot override these protections through internal

regulations, reinforcing congressional intent in defining

employee rights.

15. https: //ad m i n ist rat ivest at e.g mu.edu / w p - cont ent /

uploads/2020/02/Postell-From-Merit-to-Expertise-and-Back.pdf

22

CONCLUSION

In the annals of history, the erosion of democratic

institutions and human rights often begins not with

cataclysmic events, but with acquiescence to strong-arm

executive or legislative impulses. This Court’s decisions

don’t just record historical events, it begets them. Mr. Sage

recalls the Court’s infamous Dred Scott decision in 1857

that entrenched slavery (Dred Scott v. Sandford, 60 U.S.

393), or the wartime internment of Japanese Americans

during World War II, Korematsu v. United States, 323

U.S. 214 (1944), which betrayed constitutional protections

under the guise of emergency. These moments illustrate

how societies can slip away from protective civilization

when citizens and leaders fail to vigilantly challenge

encroachments on the constitutional order. We have a

history of allowing the fragile constructs of justice and

governance to unravel thread by thread. Handing over to

the Executive the constitutional powers of the Legislature

is to invite despotic government.

Respectfully submitted,

Thad M. Guyer

T.M. Guyer & Friends, PC

116 Mistletoe Street

Medford, OR 97501

(206) 941-2869

thad@guyerayers.com

Counsel for Amicus Curiae