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

Nos. 24-1287/25-250

In the

Supreme Court of the United States

____________

LEARNING RESOURCES, et al.,

Petitioners,

v.

DONALD J. TRUMP,

President of the United States, et al.,

Respondents.

___________

DONALD J. TRUMP,

President of the United States, et al.,

Petitioners,

v.

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

Respondents.

___________

On Writ of Certiorari Before Judgment to the

United States Court of Appeals for the District

of Columbia Circuit and on Writ of Certiorari to the

United States Court of Appeals for the Federal Circuit

____________

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE SUPPORTING

PETITIONERS (24-1287)/RESPONDENTS (25-250)

____________

Cory L. Andrews

Zac Morgan

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

zmorgan@wlf.org

October 24, 2025

i

QUESTION PRESENTED

Whether 50 U.S.C. § 1702(a)(1)(B) grants the

President legal authority to impose tariffs.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................................... i

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

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

INTRODUCTION AND SUMMARY OF

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

ARGUMENT ............................................................ 3

I.

IEEPA PROVIDES NO LEGAL AUTHORITY

FOR THE PRESIDENT’S TARIFFS ....................... 3

II.

CONGRESS WOULD NOT HAVE HANDED

OVER THIS MULTI-TRILLION-DOLLAR

ECONOMIC QUESTION SO OBLIQUELY ........... 10

CONCLUSION ....................................................... 14

iii

TABLE OF AUTHORITIES

Page(s)

Ala. Ass’n of Realtors v. U.S. Dep’t of HHS,

594 U.S. 758 (2021)................................ 2, 3, 11, 13

Biden v. Neb.,

600 U.S. 477 (2023).............................. 6, 10, 12, 13

Dubin v. United States,

599 U.S. 110 (2023)................................................6

FCC v. Consumers’ Rsch.,

606 U.S. __, 145 S. Ct. 2482 (2025) .......................4

Gonzales v. Or.,

546 U.S. 243 (2006)........................................4, 5, 6

Gundy v. United States,

588 U.S. 128 (2019)............................................4, 8

Gustafson v. Alloyd Co.,

513 U.S. 561 (1995)................................................6

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

276 U.S. 394 (1928)............................................3, 8

MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,

512 U.S. 218 (1994)................................................7

Morrison v. Olson,

487 U.S. 654 (1988)..............................................13

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

567 U.S. 519 (2012)................................................5

iv

Nat’l Fed’n of Indep. Bus. v.

Occupational Safety & Health Admin.,

595 U.S. 109 (2022)................................................3

Sacks v. Office of Foreign Assets Control,

466 F.3d 764 (9th Cir. 2006)..................................9

Seila Law LLC v. Consumer Fin. Prot. Bureau,

591 U.S. 197 (2020)................................................1

Seven Cnty. Infrastructure Coal. v.

Eagle Cnty., Colo.,

605 U.S. __, 145 S. Ct. 1497 (2025) .......................1

Trump v. Slaughter,

Case No. 25-332 (U.S. 2025) ..................................1

United States v. Locke,

471 U.S. 84 (1985)................................................10

United States v. Yoshida Int’l, Inc.,

526 F.2d 560 (C.C.P.A. 1975) ................................9

W. Va. v. EPA,

597 U.S. 697 (2022)........................ 2, 4, 6, 8, 10, 12

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001)..............................................11

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952)................................................3

Constitutional Provisions

U.S. Const., art. I ........................................................2

v

U.S. Const., art. I, § 8..................................................3

U.S. Const., art. II .............................................1, 4, 13

Statutory Provisions

19 U.S.C. § 1338 ..........................................................2

19 U.S.C. § 1338(a)......................................................7

19 U.S.C. § 1862 ..........................................................2

19 U.S.C. § 1862(c) ......................................................7

19 U.S.C. § 2132 ..........................................................2

19 U.S.C. § 2132(a)....................................................11

19 U.S.C. § 2411 ..........................................................2

19 U.S.C. § 2411(c)(1)(B) .............................................8

50 U.S.C. § 1702(a)(1)(B) .....................i, 2, 5, 6, 10, 11

Executive Orders

Executive Order 14193 ...........................................4, 6

Executive Order 14194 ...............................................4

Executive Order 14195 ...............................................4

Executive Order 14231 ...............................................4

Executive Order 14245 ...............................................4

vi

Executive Order 14257 .......................................4, 5, 7

Executive Order 14259 .........................................4, 12

Executive Order 14266 ...............................................4

Executive Order 14298 .........................................4, 12

Executive Order 14316 .........................................4, 12

Executive Order 14323 ...............................................4

Executive Order 14326 ...............................................4

Executive Order 14334 ...............................................4

Executive Order 14345 ...............................................4

Proposed Legislation

A Bill to Authorize the President to Impose a

Tariff Surcharge . . .,

H.R. 1740,

98th Congress (1983) ...........................................10

Balanced Trade Restoration Act,

S. 3899,

109th Congress (2006) ...........................................9

Neither Permanent Nor Normal Trade

Relations Act,

S. 5264,

118th Congress (2024) ...........................................9

vii

Restoring Trade Fairness Act,

H.R. 10127,

118th Congress (2024) ...........................................9

United States Reciprocal Trade Act,

H.R. 764,

116th Congress (2019) ...........................................9

Other Authorities

Alan Greenspan & Adrian Wooldridge,

Capitalism in America: A History (2018) ............12

Scott Lincicome,

Toys, Pencils, and Poverty at the Margins,

Cato Inst., May 7, 2025 .......................................12

Pet. Br., Trump v. Slaughter,

Case No. 25-332 (U.S. 2025) ................................13

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

Statement of President Carter on

Signing H.R. 7738 Into Law

(Dec. 28, 1977)........................................................9

U.S. Dep’t of Commerce,

Bureau of Economic Analysis,

U.S. International Trade in Goods and Services,

Annual and December 2024,

(Feb. 5, 2025)..........................................................2

Xuan-Thao Nguyen & Jeffrey A. Maine,

Attacking Innovation,

99 B.U. L. Rev. 1687 (2019) .................................12

1

INTEREST OF AMICUS CURIAE *

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. It defends free markets,

individual rights, limited government, and the rule of

law. It often appears as amicus curiae in cases where

one branch of the federal government has usurped the

powers of another. Trump v. Slaughter, Case No.

25-332 (U.S. 2025); Seila Law LLC v. Consumer Fin.

Prot. Bureau, 591 U.S. 197 (2020). WLF also filed as

amicus curiae when Case No. 24-1287 was before the

Court on petition for certiorari before judgment.

INTRODUCTION AND

SUMMARY OF ARGUMENT

“In deciding cases involving the American

economy, courts should strive, where possible, for

clarity and predictability.” Seven Cnty. Infrastructure

Coal. v. Eagle Cnty., Colo., 605 U.S. __, 145 S. Ct.

1497, 1518 (2025). The President claims a virtually

unlimited authority to tariff, with the ability to

change rates on imports at whim. He rests his claim

not on an inherent Article II power, but on the

International Emergency Economic Powers Act

(IEEPA). The President reads IEEPA as if it gives

him the authority to “tax imports.” E.g., Trump Br. at

20, 23–25. But that’s not what IEEPA says at all.

* No party’s counsel authored any part of this brief. No

person or entity, other than Washington Legal Foundation and

its counsel, paid for the brief’s preparation or submission.

2

True, IEEPA contains a 76-word provision, 50

U.S.C. § 1702(a)(1)(B), that happens to contain the

words “regulate” and “importation.” Not next to each

other, but sixteen (quite different) words apart. On

this basis, and this basis alone, the President asserts

the right to control America’s seven-trillion-dollar

import-export market by himself. U.S. Dep’t of

Commerce, Bureau of Economic Analysis, U.S.

International Trade in Goods and Services, Annual

and

December

2024,

(Feb.

5,

2025);

https://perma.cc/UQ2E-LDB4.

The President’s contention that two “modest

words,” W. Va. v. EPA, 597 U.S. 697, 723 (2022)

(internal quotation marks and citation omitted), so

separated from each other in the text, vest the

Executive with a global license to tariff is just wrong.

“We expect Congress to speak clearly when

authorizing [the Executive Branch] . . . to exercise

powers of vast economic and political significance.”

Ala. Ass’n of Realtors v. U.S. Dep’t of HHS, 594 U.S.

758, 764 (2021) (internal quotation marks and

citation omitted).

Congress knows well how to delegate tariff

powers to the President and those Executive Branch

personnel he commands. It did not do so here.

Congress has finely, even minutely, described the

circumstances under which the President himself

may impose import taxes. E.g., 19 U.S.C. §§ 1338,

1862, 2132, 2411. This is unsurprising. The tariff

power is a core feature of Article I, and it would be odd

indeed if the Congress had, as the President claims,

so cavalierly abandoned it.

3

Undaunted, the President claims IEEPA as a

“sweeping authority,” Ala. Ass’n of Realtors, 594 U.S.

at 760, to impose, reduce, hike, suspend, double,

treble, quadruple, eliminate, and re-enact tariffs on

any import, bounded only by the ministerial act of

first announcing a national emergency, which he

alone may endlessly renew. Id. at 766 (ending ultra

vires executive action undertaken via emergency

powers); Nat’l Fed’n of Indep. Bus. v. Occupational

Safety & Health Admin., 595 U.S. 109, 120–21 (2022)

(same). It “strains credulity,” Ala. Ass’n of Realtors,

594 U.S. at 760, that Congress, well-aware of the

importance of regulatory and taxation certainty to

America’s business community, would have given the

President unbridled whipsaw authority on such a

major question.

ARGUMENT

I.

IEEPA PROVIDES NO LEGAL AUTHORITY FOR

THE PRESIDENT’S TARIFFS.

The Constitution unreservedly entrusts the

tariff power to the Legislative Branch, and only

Congress may authorize the Executive to “lay and

collect Taxes, Duties, Imposts and Excises.” U.S.

Const., art. I, § 8. If the President wishes to set tariff

rates by executive order, his “power, if any, to issue”

such an “order must stem . . . from an act of Congress.”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 585 (1952); J.W. Hampton Jr. & Co. v. United

States, 276 U.S. 394, 413 (1928) (Congress may

delegate customs duty rates to the Executive).

Tariffs are taxes on international trade. As a

result, they may well pose second-order “diplomatic

4

challenges” and consequences “in the national

security or foreign policy contexts” for the President.

FCC v. Consumers’ Rsch., 606 U.S. __, 145 S. Ct. 2482,

2516 (2025) (Kavanaugh, J., concurring); Trump Br.

at 10–11 (observing that the President’s subordinate

officers rely on the President’s reading of IEEPA in

negotiating with foreign states). But since there is no

“independent Article II authority” or “power” to tariff,

this Court has no basis to presume “that Congress

intend[ed] to give the President substantial authority

and flexibility” to do so, Consumers’ Rsch., 145 S. Ct.

at 2516 (Kavanaugh, J., concurring), through openended, “oblique,” Gonzales v. Or., 546 U.S. 243, 267

(2006), “vague,” W. Va., 597 U.S. at 732, or “cryptic”

terms. FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 160 (2000).

So, like any other legislative delegation of great

magnitude, any statutory authority for a freestanding

presidential right to tariff must be unambiguous. See

Gundy v. United States, 588 U.S. 128, 163 (2019)

(Gorsuch, J., dissenting) (“To boost American

competitiveness in international trade, the legislation

directed the President to investigate the relative costs

of production for American companies and their

foreign counterparts and impose tariffs or duties that

would equalize those costs”) (internal quotation

marks, brackets, and citations omitted). The

President reads IEEPA as such a clear authority.

Trump Br. at 23; see, e.g., Executive Orders 14345,

14334, 14326, 14323, 14316, 14298, 14266, 14259,

14257, 14256, 14245, 14232, 14231. He has leaned on

IEEPA to impose specific tariffs on some of the

Nation’s largest trading partners, e.g., Executive

Orders 14193 (Canada), 14194 (Mexico), 14195

(China), to impose reciprocal rates on other countries

5

to improve America’s balance-of-trade, Executive

Order 14257, and to impose a more-or-less universal

floor tariff of ten percent on all foreign goods sold in

the United States. Id.

Some of these tariffs have been altered or held

in abeyance (for now), but not all. What certainly

hasn’t changed in the President’s theory that IEEPA

gives him a free hand. But IEEPA doesn’t say what

the President says it does. As one of the lower courts

noted, “IEEPA does not use the words ‘tariffs’ or

‘duties,’ their synonyms, or any similar terms like

‘customs,’ ‘taxes,’ or ‘imposts.’” 24-1287 App. 21a.

That accords with the Act’s provenance—an economic

sanctions statute enacted with wartime or nearwartime conditions in mind. Pub. L. No. 95-223, 91

Stat. 1625 (1977) (enacting IEEPA “with respect to

the powers of the President in time of war or national

emergency”).

Start with “the language of the delegation

provision itself.” Gonzales, 546 U.S. at 258. Section

1702(a)(1)(B) has 76 operative words. To be sure, two

those words are “regulate” and “importation.” The

President claims those words are “paired” in the

statute, Trump Br. at 24, to create a right to “regulate

importation.” Id. at 20, 23, 24, 25, 26, 28, 30, 31, 33,

34. But IEEPA intentionally separates those terms by

no fewer than sixteen additional words. 50 U.S.C.

§ 1702(a)(1)(B). The President ignores that context to

sharpshoot “regulate” and “importation.” At the same

time, he gives those two words extraordinary

meaning—the power to regulate commerce is not

typically understood as the power to tax. Nat’l Fed’n

of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012);

24-1287 App. 22a; 25-250 App. 31a.

6

And those sixteen words matter—“statutes

‘should not be read as a series of unrelated and

isolated provisions.’” Gonzales, 546 U.S. at 273

(quoting Gustafson v. Alloyd Co., 513 U.S. 561, 570

(1995)). The President’s reading can be accepted only

if “regulate” and “importation” are “shorn of all

context,” where each “word is an empty vessel” for an

interpreter to fill. W. Va., 597 U.S. at 732. But such “a

vacuum is no home for a textualist.” Biden v. Neb.,

600 U.S. 477, 517 (2023) (Barrett, J., concurring).

Those sixteen words, “direct and compel, nullify, void,

prevent or prohibit, any acquisition, holding,

withholding,

use,

transfer,

withdrawal,

transportation,” are far removed from the rote ratesetting of customs duties. 50 U.S.C. § 1702(a)(1)(B).

Those sixteen words connote compellence,

voidance, prevention—traditional national security or

wartime aims we would expect to find in a sanctions

authority, not a taxing one. 25-250 App. 33a, n.14

(“[T]he other verbs implicate the common law

doctrine that trade with enemy nations or hostile

actors is illegal . . . Congress has long enacted statutes

on this backdrop”). Yet the President asks us to

believe that Congress used those words not to allow

for the President to embargo a hostile foreign power,

but to slap taxes on goods imported from a NATO ally.

Executive Order 14193 (Canada). That doesn’t wash.

As even the President’s brief concedes, those

verbs are about “means of control,” Trump Br. at 29,

and “noscitur a sociis indicates that ‘[regulate]’ should

be read in a similar manner to its companions.” Dubin

v. United States, 599 U.S. 110, 126 (2023). Tariffs

aren’t a direct “mechanism of control,” such as “an

7

asset freeze, an embargo, [or] a quota.” Trump Br. at

29; 25-250 App. 36a (“In almost all other instances

where IEEPA has been invoked, presidents did so to

freeze assets, block financial transfers, place

embargoes, or impose targeted sanctions on hostile

regimes and individuals”). A tariff is a tax—not a

taking.

Other provisions of IEEPA further counsel

against the President’s strained construction. IEEPA

has always contained a carve-out for American

“donations” of “food, clothing, and medicine.” 50

U.S.C. § 1702(b)(2). When Congress amended IEEPA

in 1988, it added an additional exemption for the

exportation of American “informational materials.”

Id. § 1702(b)(3). Those kinds of caveats make sense if

IEEPA is about economic warfare, but are rather odd

if it’s an import-export-balancing power. Cf.

Executive Order 14257 (imposing reciprocal tariffs

and an import floor duty of ten percent). In short,

“[w]hat we have here, in” the President’s preferred

reading, “is a fundamental revision of the statute.”

MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S.

218, 231 (1994).

Yet other, uncontested delegations of the tariff

power by Congress to the President—housed in Title

19 (customs duties) and not Title 50 (war and national

defense)—do not require the reader to squint or

delete. Section 1338 gives the President the power to

“specify and declare new or additional duties.” 19

U.S.C. § 1338(a). Section 1862 enumerates the

circumstances under which the President may “adjust

imports of an article and its derivatives” for national

security reasons. 19 U.S.C. § 1862(c). Section 2411

allows the President, through the U.S. Trade

8

Representative he controls, to “impose duties or other

import restrictions on the goods of, and,

notwithstanding any other provision of law, fees or

restrictions on the services of, such foreign country for

such time as [is] . . . appropriate.” 19 U.S.C.

§ 2411(c)(1)(B).

Contrast IEEPA with the Tariff Act of 1922,

which this Court blessed against a separation-ofpowers challenge. J.W. Hampton, 276 U.S. at 413.

Congress enacted that statute “[t]o boost American

competitiveness in international trade,” not provide

for gray-zone, near-wartime exigencies. Gundy, 588

U.S. at 163 (Gorsuch, J., dissenting). It “directed the

President to investigate the relative costs of

production for American companies and their foreign

counterparts and impose tariffs or duties that would

equalize their costs,” all while directly providing the

Executive “guidance on how to determine costs of

production, listing several relevant factors and

establishing a process for interested parties to submit

evidence.” Id. (internal quotation marks, brackets,

and citations omitted). The Tariff Act did all this

expressly, not with blink-and-you-miss-it verbiage.

Id. (It also bears some textualist weight that the

Tariff Act was called the Tariff Act.)

Lacking similarly explicit authorization, the

President’s brief flags President Nixon’s aberrant and

deeply contested post hoc rationalization that

IEEPA’s predecessor statute (not even IEEPA)

provided a legal basis to (briefly) impose tariffs. The

President contends that IEEPA’s “modest words,” W.

Va., 597 U.S. at 723 (internal quotation marks and

citation omitted), constitute a ratification of the Nixon

administration’s conduct. E.g., Trump Br. at 26, 36.

9

This blinks reality. IEEPA was a postWatergate reform “passed by Congress to counter the

perceived abuse of emergency controls by presidents

to . . . interfere with international trade in nonemergency, peacetime situations.” Sacks v. Office of

Foreign Assets Control, 466 F.3d 764, 776 (9th Cir.

2006). President Carter, who signed IEEPA,

confirmed that the statute was a “largely procedural”

one, but one that, if anything, “place[d] additional

constraints on use of the President’s emergency

economic powers.” Statement of President Carter on

Signing H.R. 7738 Into Law (Dec. 28, 1977);

https://perma.cc/BX8M-4J23. And even the federal

appellate

court

that

reviewed

the

Nixon

administration’s after-the-fact argument admitted

that blessing an unbounded emergency-based

presidential right to tariff would “sound the deathknell of the Constitution.” United States v. Yoshida

Int’l, Inc., 526 F.2d 560, 583 (C.C.P.A. 1975).

In fact, over the past several decades, Members

of Congress have tried to give the Executive Branch

the power to do what the President insists IEEPA

already licenses. E.g., Restoring Trade Fairness Act,

H.R. 10127, 118th Congress (2024) (authority for the

President to impose tariffs on China); Neither

Permanent Nor Normal Trade Relations Act, S. 5264,

118th Congress (2024) (same); United States

Reciprocal Trade Act, H.R. 764, 116th Congress

(2019) (vesting a reciprocal tariff power in the

President); Balanced Trade Restoration Act, S. 3899,

109th Congress (2006) (granting authority to the

Commerce Secretary “[t]o achieve balance in the

foreign trade of the United States, through a marketbased system of tradable certificates”); A Bill to

10

Authorize the President to Impose a Tariff Surcharge

. . ., H.R. 1740, 98th Congress (1983) (“authoriz[ing]

the President to impose a tariff surcharge on the

products of certain countries in order to offset the

expense of providing United States defense assistance

to such countries”). None of these efforts succeeded.

These failures further counsel against reading

IEEPA has an unrestrained grant to the President.

He, like this Court, has no power to “redraft statutes

in an effort to achieve that which Congress” has

“failed to do.” United States v. Locke, 471 U.S. 84, 95

(1985); cf. W. Va., 597 U.S. at 724 (“the Agency’s

discovery allowed it to adopt a regulatory program

that Congress had conspicuously and repeatedly

declined to enact itself”); Brown & Williamson, 529

U.S. at 159–60 (stating similar).

II.

CONGRESS WOULD NOT HAVE HANDED OVER

THIS MULTI-TRILLION-DOLLAR ECONOMIC

QUESTION SO OBLIQUELY

“In arguing that Section [1702(a)(1)(B)]

empowers [him] to substantially restructure the

American [import-export] market,” the President has

“claimed to discover in a long-extant statute an

unheralded power representing a transformative

expansion in [his] . . . authority.” W. Va., 597 U.S. at

724 (cleaned up, brackets supplied). This action’s

“economic and political significance . . . is staggering

by any measure.” Biden, 600 U.S. at 502 (internal

quotation marks and citations omitted). Whether

IEEPA vests the President with unilateral tariff

authority is a major question affecting trillions of

dollars in purchasing, production, and pricing

decisions for every business in America that engages,

11

even in an ancillary fashion, in the international

marketplace. So “[e]ven if the text were ambiguous,

the sheer scope of the [President’s] claimed authority

under [IEEPA] would counsel against the

Government’s interpretation.” Ala. Ass’n of Realtors,

594 U.S. at 764.

The President’s brief suggests that the major

questions canon isn’t relevant because IEEPA is often

used by the Executive. Trump Br. at 37. That cuts

against him. In IEEPA’s nearly 50-year history, no

other President has picked up section 1702(a)(1)(B)

for tariffing. Id. (recounting IEEPA invocations

related to the seizure of the American embassy in

Tehran and the al Qaida terrorist attacks of

September 11th). And that’s not because Presidents

Carter, Reagan, Bush, Clinton, Bush, Obama, and

Biden were overly deferential to Congress. It’s

because none of those Administrations found it

plausible that Congress had quietly crammed an

elephantine tariff delegation into IEEPA. Whitman v.

Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).

Until now, the business community could rest

assured that presidential tariffs would arrive only

through established means with “well-defined

procedural and substantive limitations.” 25-250 App.

19a. And under those provisions, the Executive’s

tariff authorities are either strictly time-limited, 19

U.S.C. § 2132(a), require a pre-tariff investigation, or

even have a notice-and-comment period before taking

effect. Id. at 19a–20a. Time limits give market actors

a date certain for executive-only tariffs to expire.

Time lags give market actors lead time to adjust or

petition for change. This well-planned course gives

12

the Nation’s businesses legal certainty they can count

on.

Businesses “crave certainty as much as almost

anything: certainty is what allows them to make longterm plans and long-term investments.” Alan

Greenspan & Adrian Wooldridge, Capitalism in

America: A History 258 (2018). Certainty is especially

crucial in the context of tariffs. Tariffs are taxes, and

“frequent tax changes [are] the greatest factor in

business uncertainty affecting investment and

growth.” Xuan-Thao Nguyen & Jeffrey A. Maine,

Attacking Innovation, 99 B.U. L. Rev. 1687, 1738

(2019).

But if IEEPA is a freestanding grant to the

President, certainty crumbles. Rates can be (and have

been) immediately and significantly changed day to

day based on the Executive’s policy whims. E.g.,

Executive Orders 14316, 14298, 14259. As a result,

it’s already too late for companies struggling amid

this vast zone of uncertainty to figure out how to best

fill inventory for Christmas. Scott Lincicome, Toys,

Pencils, and Poverty at the Margins, Cato Inst., May

7, 2025, http://perma.cc/9Z2Y-UBP2 (observing that

“97 percent of toys purchased in the United States are

imported”).

So risking the legal certainty on which

America’s global supply chain depends is exactly the

sort of “big-time policy call[]” that “a reasonable

interpreter” would find unlikely to be “pawn[ed] . . .

off to another branch” by the Congress. Biden, 600

U.S. at 515 (Barrett, J., concurring) (see citing to W.

Va., 597 U.S. at 723). “Regulate” no more grants the

Executive a tariff power than “waive or modify”

13

granted a power to cancel debt,” Biden, 600 U.S. at

506, “necessary” granted a power to freeze evictions

nationwide, Ala. Ass’n of Realtors, 594 U.S. at 765, or

“drug” afforded carte blanche to regulate tobacco

products. Brown & Williamson, 529 U.S. at 125.

In return, the President’s brief suggests that

the major questions canon doesn’t apply to him, just

those administrative agencies he commands and

controls. Trump Br. at 36. But the interpretative

canons fall on the President and the heads of

departments alike. For the major questions canon to

only apply to Executive Branch agencies and not the

President, it must be true that there are independent

pockets of power within Article II that are

unaccountable to the Chief Executive and may be

constrained only by the other branches. But there are

not. Pet. Br., Trump v. Slaughter, Case No. 25-332

(U.S. 2025).

The President’s effort to split the Executive

Branch for purposes of judicial review so that he may

“effect important change in the equilibrium of power”

by seizing the tariff authority from Congress should

be resisted—for “this wolf comes as a wolf.” Morrison

v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J.,

dissenting).

14

CONCLUSION

The President’s claimed authority to tariff

under IEEPA doesn’t exist. This Court should affirm.

Respectfully submitted,

Cory L. Andrews

Zac Morgan

Counsel of Record

WASHINGTON LEGAL FOUNDATION

2009 Massachusetts Ave. NW

Washington, DC 20036

(202) 588-0302

zmorgan@wlf.org

October 24, 2025