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

Supreme Court briefOct 24, 2025

Ask Donna

What actually matters in this document.

Text

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., 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 AMICUS CURIAE THE BRENNAN

CENTER FOR JUSTICE IN SUPPORT OF

PETITIONERS IN NO. 24-1287

AND RESPONDENTS IN NO. 25-250

__________

Leah J. Tulin

Counsel of Record

Elizabeth Goitein

Katherine Yon Ebright

Hannah James

BRENNAN CENTER FOR JUSTICE

AT NYU SCHOOL OF LAW

777 6th Street NW, Suite 1100

Washington, DC 20001

(202) 650-6397

tulinl@brennan.law.nyu.edu

Counsel for Amicus Curiae

TABLE OF CONTENTS

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

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

SUMMARY OF THE ARGUMENT ............................ 1

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

II.

Congress Enacted the NEA and IEEPA to

Circumscribe Presidential Use of Emergency

Powers. .............................................................. 3

Congress’s Role in Authorizing and

Regulating the President’s Exercise of

Emergency Powers. ................................. 4

The Origins and Purpose of the NEA. .... 6

The Origins and Purpose of IEEPA. ..... 12

The Executive Orders Are Contrary to

Congress’s Intent in Enacting the NEA and

IEEPA. ............................................................ 15

The President Acted Outside a

Permissible Range of Discretion in

Declaring a National Emergency. ........ 16

Longstanding Trade Imbalances Do Not

Constitute an “Unusual and

Extraordinary Threat.” ......................... 20

IEEPA Does Not Authorize the

Imposition of Tariffs. ............................. 23

Upholding the Executive Orders Would

Permit Circumvention of Tariff Laws…

................................................................ 25

III. Upholding the Executive Orders Would Create

a Dangerous Precedent................................... 28

CONCLUSION .......................................................... 30

iii

TABLE OF AUTHORITIES

Cases

Atkins v. Virginia, 536 U.S. 304 (2002) .................... 22

Baker v. Carr, 369 U.S. 186 (1962) ............... 16, 20, 23

Beacon Prods. Corp. v. Reagan, 633 F. Supp. 1191

(D. Mass. 1986) ....................................................... 20

Bostock v. Clayton County, 590 U.S. 644 (2020) ..........

............................................................................. 4, 17

Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct.

2603 (2020).............................................................. 21

Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924) ... 16

Dep’t of Com. v. New York, 588 U.S. 752 (2019) ...... 19

Eldred v. Ashcroft, 537 U.S. 186 (2003) ..................... 9

Feliciano v. Dep’t of Transp., 605 U.S. ___, 145 S. Ct.

1284 (2025).............................................................. 18

Filtration Dev. Co. v. United States, 60 Fed. Cl. 371

(2004)....................................................................... 22

INS v. Chadha, 462 U.S. 919 (1983) .......................... 8

Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S.

221 (1986)................................................................ 20

Loper Bright Enters. v. Raimondo, 603 U.S. 369

(2024)................................................................... 9, 24

Magana-Magana v. Bondi, 129 F.4th 557 (9th Cir.

2025) ........................................................................ 22

Sterling v. Constantin, 287 U.S. 378 (1932) ................

..................................................................... 16, 20, 23

United States v. Yoshida Int’l, Inc., 526 F.2d 560

(C.C.P.A. 1975) ....................................................... 16

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

579 (1952).................................................................. 5

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 1 ........................................ 26

U.S. Const. art. II ........................................................ 5

Statutes

10 U.S.C. § 712(a) ...................................................... 29

19 U.S.C. § 1338 ........................................................ 26

19 U.S.C. § 1862(b)–(c) ........................................ 26, 28

19 U.S.C. § 2132 .................................................. 26, 27

19 U.S.C. §§ 2251–2255............................................. 26

19 U.S.C. §§ 2411–2420............................................. 26

47 U.S.C. § 606(c) ...................................................... 29

49 U.S.C. § 114(g) ...................................................... 29

50 U.S.C. § 1513 ........................................................ 29

50 U.S.C. § 1515 ........................................................ 29

50 U.S.C. § 1622(a)(1) ............................................... 15

50 U.S.C. § 1701(a) .............................................. 14, 20

50 U.S.C. § 1702(a)(1)(B)..................................... 12, 14

50 U.S.C. § 1703(a)–(c) .............................................. 15

Act of Dec. 28, 1977, Pub. L. No. 95-223, 91 Stat.

1625 ......................................................................... 13

Emergency Banking Relief Act, ch. 1, 48 Stat. 1

(1933)....................................................................... 12

First War Powers Act, 1941, ch. 593, 55 Stat. 838 ......

................................................................................. 12

Foreign Relations Authorization Act, Fiscal Years

1986 and 1987, Pub. L. No. 99-93, 99 Stat. 405

(1985)......................................................................... 8

International Emergency Economic Powers Act, Pub.

L. No. 95-223, 91 Stat. 1625 (1977) ....................... 13

National Emergencies Act, Pub. L. No. 94-412, 90

Stat. 1255 (1976)................................................... 7, 8

Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978

........................................................................... 24, 26

Uruguay Round Agreements Act, Pub. L. No. 103465, 108 Stat. 4809 (1994) ...................................... 26

Other Authorities

123 Cong. Rec. 424 (1977) (statement of Rep.

Jonathan B. Bingham, Chairman, Subcomm. on

Int’l Econ. Pol’y & Trade of the H.R. Comm. on Int’l

Rels.)........................................................................ 13

2A Norman Singer & Shambie Singer, Sutherland

Statutes and Statutory Construction (7th ed.),

Westlaw (database updated April 2025).................. 9

A Guide to Emergency Powers and Their Use,

Brennan Ctr. for Just. (Jan. 23, 2019),

https://perma.cc/QQ43-9TVE ........................... 11, 29

Andrew Boyle, Brennan Ctr. for Just., Checking the

President’s Sanctions Powers (2021),

https://perma.cc/NWD2-VS8K.......................... 12, 13

Brief of the Brennan Center for Justice & the Cato

Institute as Amici Curiae, Sierra Club v. Trump,

977 F.3d 853 (9th Cir. 2020) (Nos. 19-17501, 1917502, 20-15044)..................................................... 25

Chad P. Bown, Peterson Inst. for Int’l Econ., Trump’s

Trade War Timeline 2.0: An Up-to-Date Guide (Oct.

17, 2025), https://perma.cc/KK8A-337K ................ 19

Christopher A. Casey & Cathleen D. Cimino-Isaacs,

Cong. Rsch. Serv., IF10038, Trade Promotion

Authority (TPA) (2024), https://perma.cc/NZ59PQZ9........................................................................ 26

Comparative Constitutions Project, Constitutions

Database, Constitute, https://perma.cc/GER8-2YPX

................................................................................... 5

Declared National Emergencies Under the National

Emergencies Act, Brennan Ctr. for Just. (Oct. 20,

2025), https://perma.cc/4J9N-28DP ....................... 29

Emergency, American Heritage Dictionary (1st ed.

1969) ........................................................................ 17

Emergency, Webster’s New Collegiate Dictionary (9th

ed. 1976) .................................................................. 17

Exec. Order No. 14,257, 90 Fed. Reg. 15,041 (Apr. 2,

2025) ...................................................... 18, 22, 23, 27

vii

H.R. Rep. No. 94-238 (1975)................................ 25, 28

H.R. Rep. No. 95-459 (1977)..........................................

....................................... 12, 13, 14, 17, 18, 24, 25, 28

John Ferejohn & Pasquale Pasquino, The Law of the

Exception: A Typology of Emergency Powers, 2 Int’l

J. Const. L. 210 (2004) .............................................. 5

L. Elaine Halchin, Cong. Rsch. Serv., 98-505,

National Emergency Powers (2021),

https://perma.cc/NK3V-DLFF .............................. 5, 6

Proclamation No. 2039, 48 Stat. 1689 (Mar. 6, 1933)

................................................................................. 12

Restoring Congressional Oversight over Emergency

Powers: Exploring Options to Reform the National

Emergencies Act: Hearing Before the S. Comm. on

Homeland Sec. & Governmental Affs., 118th Cong.

(2024) (statement of Elizabeth Goitein, Brennan

Center for Justice), https://perma.cc/4TJL-3QTR .....

............................................................................... 4, 9

S. 977, 94th Cong. (1975) .......................................... 10

S. Comm. on Gov’t Operations & Spec. Comm. on

Nat’l Emergencies & Delegated Emergency Powers,

94th Cong., The National Emergencies Act (Public

Law 94-412), Source Book: Legislative History,

Text, and Other Documents (Comm. Print 1976) ......

......................................................... 6, 7, 8, 10, 11, 21

S. Rep. No. 95-466 (1977) .......................................... 24

S. Res. 242, 93d Cong. (1974)...................................... 6

Saikrishna Bangalore Prakash, The Imbecilic

Executive, 99 Va. L. Rev. 1361 (2013) ...................... 5

viii

Thomas E. Cronin, A Resurgent Congress and the

Imperial Presidency, 95 Pol. Sci. Q. 209 (1980) ....... 6

U.S. Bureau of Econ. Analysis, Real Value Added by

Industry: Manufacturing, Fed. Rsrv. Bank of St.

Louis, https://perma.cc/NYD5-QQ42 ..................... 19

U.S. Bureau of Lab. Stat., Manufacturing Sector:

Real Sectoral Output for All Workers, Fed. Rsrv.

Bank of St. Louis, https://perma.cc/PQV8-E24Q.......

................................................................................. 19

U.S. Trade Balance, Macrotrends,

https://perma.cc/V2VG-SZBT ................................. 18

INTEREST OF AMICUS CURIAE

Amicus curiae the Brennan Center for Justice at

NYU School of Law 1 (“the Brennan Center”) is a notfor-profit, non-partisan think tank and public interest

law institute that seeks to improve systems of

democracy and justice. The Brennan Center has

conducted extensive research on, analysis of, and

public education regarding the National Emergencies

Act of 1976 (NEA), the International Emergency

Economic Powers Act (IEEPA), and the president’s

emergency powers more generally. In this brief, we

explain why the president’s emergency declarations

and invocations of IEEPA for the purpose of imposing

worldwide tariffs are contrary to the original purpose

of both the NEA and IEEPA, why this Court is

empowered to intervene, and how failure to intervene

could open the door to presidential misuse of dozens of

highly potent emergency powers.

SUMMARY OF THE ARGUMENT

Emergency powers have a narrow and specific

function in our constitutional system. They are meant

to provide presidents with a temporary boost in power

to deal with sudden, unforeseen crises that require

immediate action. They present a significant

temptation, however, as they offer a potential means

to short-circuit the normal policymaking process in

non-emergency circumstances. A pattern of such

conduct in the mid-twentieth century led Congress to

enact the NEA and IEEPA.

1 This brief does not purport to convey the position, if any, of New

York University School of Law. No counsel for any party

authored this brief in whole or in part, and no person other than

amicus curiae and counsel made a financial contribution to its

preparation or submission.

The NEA was intended to rein in presidential use

of statutory emergency powers. Although Congress

did not define “national emergency,” the statute’s

history makes clear that Congress did not provide an

affirmative grant of limitless discretion to the

president and that it expected the limits contained

within specific emergency powers to be scrupulously

observed and enforced. Congress similarly enacted

IEEPA to cabin the president’s authority—namely,

the authority to regulate economic transactions in

response to peacetime emergencies. In addition to

predicating the exercise of such powers on a

declaration of national emergency, Congress specified

that the emergency must constitute an “unusual and

extraordinary threat” to the country’s national

security, foreign policy, or economy, and narrowed the

powers available under the law. Congress thus sought

to prevent the use of IEEPA to engage in the type of

routine policymaking that is and should be governed

by non-emergency authorities.

President Trump’s declaration of a national

emergency and invocation of IEEPA to impose tariffs

contravene the statutory scheme envisioned and

enacted by Congress in multiple ways. First,

President Trump has declared an emergency where

none exists, violating the cardinal principal behind

the NEA’s enactment. Although courts rarely review

the determinations of the political branches regarding

the existence of emergencies, judicial review is

appropriate where, as here, the president’s actions fall

outside even a broad band of permitted discretion.

Second, President Trump invoked IEEPA in the

absence of an “unusual and extraordinary” threat to

the U.S. national security, foreign policy, or economy,

a criterion that Congress intended as a critical

safeguard against abuse. Third, given Congress’s goal

of circumscribing presidential use of emergency

powers, IEEPA should not be construed to authorize

tariffs absent clear congressional intent to do so. The

text and legislative history of the statute evince no

such clear intent; indeed, they indicate the opposite.

Finally, in using IEEPA to impose tariffs without an

emergency, an “unusual and extraordinary” threat, or

clear authorization in the law, President Trump is

bypassing an extensive legislative framework

governing the president’s imposition of tariffs—a

result that the NEA and IEEPA were intended to

prevent.

Allowing the president’s actions to stand could

have far-reaching consequences beyond this case. It

would give presidents a green light to use emergency

powers as a means of evading the authority of

Congress. The Brennan Center has catalogued 137

such powers that become available when the

president declares a national emergency, including

many that are highly susceptible to abuse. This Court

should therefore intervene to stop this abuse of

emergency power and to prevent similar abuses from

becoming the norm.

ARGUMENT

Congress Enacted the NEA and IEEPA to

Circumscribe

Presidential

Use

Emergency Powers.

The plaintiffs in these consolidated cases challenge

a raft of executive orders (“Executive Orders”) relying

on IEEPA, a statute creating a specific set of

emergency economic powers, to impose tariffs on

nearly every nation in the world. The lower courts

properly concluded that the plain language of IEEPA

forecloses the president’s actions. To the extent there

is any ambiguity, however, the combined legislative

history of the NEA and IEEPA strongly favors the

same conclusion. See Bostock v. Clayton County, 590

U.S. 644, 674 (2020) (“Members of this Court have

consulted legislative history when interpreting

ambiguous statutory language.”). That history makes

clear that the NEA and IEEPA were enacted to

circumscribe the president’s use of statutory

emergency powers and underscores the importance of

strictly construing those powers’ limits, particularly

where the use of emergency powers would circumvent

non-emergency laws.

A. Congress’s Role in Authorizing and

Regulating the President’s Exercise of

Emergency Powers.

Emergency powers play a unique role in our

country’s constitutional system. By definition,

emergencies are sudden and unexpected, and they

require immediate action. See infra Part II.A. Because

they are sudden and unexpected, Congress may not be

able to enact authorities in advance that are tailored

to address them. And as a deliberative bicameral

body, Congress is ill-suited to act with the necessary

immediacy once an emergency has occurred.

Emergency powers thus are designed to grant the

president extraordinary legal leeway to respond to

crises that Congress could not have foreseen and that

are moving too fast or too unpredictably for Congress

to address after the fact. See Restoring Congressional

Oversight over Emergency Powers: Exploring Options

to Reform the National Emergencies Act: Hearing

Before the S. Comm. on Homeland Sec. &

Governmental Affs., 118th Cong. 3–5 (2024)

(statement of Elizabeth Goitein, Brennan Center for

Justice), https://perma.cc/4TJL-3QTR; see generally

John Ferejohn & Pasquale Pasquino, The Law of the

Exception: A Typology of Emergency Powers, 2 Int’l J.

Const. L. 210 (2004).

Unlike most other countries’ constitutions, the

U.S. Constitution does not provide the president with

express emergency powers. Compare U.S. Const. art.

with

Comparative

Constitutions

Project,

Constitutions

Database,

Constitute,

https://perma.cc/GER8-2YPX

(database

reflecting that at least 160 countries’ constitutions

have provisions for emergency rule). Accordingly,

since the country’s founding, presidents have relied on

Congress to provide them with enhanced authorities

for emergency situations. 2 Throughout the nineteenth

and early twentieth centuries, Congress periodically

enacted laws giving presidents standby authorities

that they could use during military, economic, or labor

crises. See L. Elaine Halchin, Cong. Rsch. Serv., 98505, National Emergency Powers 4–5 (2021),

https://perma.cc/NK3V-DLFF.

Beginning in World War I, a new procedure for

invoking statutory emergency powers emerged.

Presidents have, on occasion, claimed that the Constitution

gives them broad inherent powers to take emergency action

without congressional authorization. The Supreme Court has not

endorsed such a reading, see, e.g., Youngstown Sheet & Tube Co.

v. Sawyer, 343 U.S. 579, 587–89 (1952) (rejecting President

Truman’s claim of inherent constitutional authority to seize

control of steel mills during the Korean War), and it finds little

support in constitutional history, see Saikrishna Bangalore

Prakash, The Imbecilic Executive, 99 Va. L. Rev. 1361, 1366–68,

1425 (2013).

Presidents would declare a national emergency, which

would give them access to statutory authorities that

otherwise lay dormant. See id. at 5. That practice

continues today. Until the enactment of the NEA,

however, there was no overarching statute regulating

it, little transparency or congressional oversight with

respect to presidents’ use of emergency powers, and

nothing to prevent states of emergency from lingering

indefinitely.

B. The Origins and Purpose of the NEA.

In the 1970s, several scandals involving executive

branch overreach prompted Congress to investigate

the exercise of executive power and to enact several

laws aimed at reasserting Congress’s role as a check

on executive authority. See generally Thomas E.

Cronin, A Resurgent Congress and the Imperial

Presidency, 95 Pol. Sci. Q. 209 (1980). It was in this

context that the Senate formed the Special Committee

on National Emergencies and Delegated Emergency

Powers (the “Special Committee”) to examine

presidential use of emergency powers. See S. Res. 242,

93d Cong. (1974); Halchin, supra, at 7–8.

The Special Committee was alarmed by what it

found.

Several

clearly

outdated

emergency

declarations remained on the books, in effect creating

“virtually permanent states of emergencies.” 120

Cong. Rec. S15784–94 (daily ed. Aug. 22, 1974)

(statement of Sen. Frank Church), reprinted in S.

Comm. on Gov’t Operations & Spec. Comm. on Nat’l

Emergencies & Delegated Emergency Powers, 94th

Cong., The National Emergencies Act (Public Law 94412), Source Book: Legislative History, Text, and

Other Documents 73 (Comm. Print 1976) [hereinafter

NEA Source Book]. These outdated declarations

continued to unlock emergency powers despite the fact

that “[l]egislation intended for use in crisis situations

is by its nature not well suited to normal, day-to-day

Government operations.” 121 Cong. Rec. H8325–41

(daily ed. Sept. 4, 1975) (statement of Rep. Peter W.

Rodino), reprinted in NEA Source Book, supra, at 244.

The committee warned that the proliferation of

emergency powers readily available to presidents had

created a “dangerous state of affairs.” S. Rep. No. 94922, at 1 (1976), reprinted in NEA Source Book, supra,

at 33. It counted more than 470 statutory provisions

that delegated extraordinary authority to the

executive branch in times of national emergency,

allowing the president to:

seize property and commodities, organize

and control the means of production, call to

active duty 2.5 million reservists, assign

military forces abroad, seize and control all

means

transportation

and

communication,

restrict

travel,

and

institute martial law, and, in many other

ways, manage every aspect of the lives of all

American citizens.

S. Rep. No. 93-1170, at 1–2 (1974), reprinted in NEA

Source Book, supra, at 19–20.

The Special Committee’s work culminated in the

introduction and passage of the NEA. See National

Emergencies Act, Pub. L. No. 94-412, 90 Stat. 1255

(1976) (codified as amended at 50 U.S.C. §§ 1601–51).

The purpose of the law, evident in every facet of its

legislative history, was to limit presidential use of

emergency powers. As summarized by the committee

in urging passage of the Act:

While much work remains, none of it is

more important than passage of the [NEA].

Right now, hundreds of emergency statutes

confer enough authority on the President to

rule the country without reference to

normal constitutional process. Revelations

of how power has been abused by high

government officials must give rise to

concern about the potential exercise,

unchecked by the Congress or the American

people, of this extraordinary power. The

[NEA] would end this threat and insure

that the powers now in the hands of the

Executive will be utilized only in time of

genuine emergency and then only under

safeguards providing for Congressional

review.

S. Rep. No. 94-922, at 18, reprinted in NEA Source

Book, supra, at 50. The law included several

provisions designed to assert a stronger and more

active role for Congress in deciding whether states of

emergency should continue. Most notably, it allowed

Congress to terminate presidentially declared states

of emergency at any time through a concurrent

resolution (known in this context as a “legislative

veto” because it would take effect without

presentment to the president). See National

Emergencies Act § 202, 90 Stat. at 1255. 3

This Court subsequently held that legislative vetoes are

unconstitutional. See INS v. Chadha, 462 U.S. 919, 954–55

(1983). Congress thus replaced the concurrent resolution

mechanism with one for joint resolutions, which must be signed

into law by the president. See Foreign Relations Authorization

Act, Fiscal Years 1986 and 1987, Pub. L. No. 99-93, § 801, 99

The NEA does not include a definition of “national

emergency.” However, the relevant committee

report—the most salient type of legislative history for

understanding congressional intent—makes clear

that this omission was not intended as a grant of

limitless discretion to the president. See Eldred v.

Ashcroft, 537 U.S. 186, 209 n.16 (2003) (“In surveying

legislative history we have repeatedly stated that the

authoritative source for finding the Legislature’s

intent lies in the Committee Reports on the bill, which

represent the considered and collective understanding

of those Members of Congress involved in drafting and

studying proposed legislation.” (alterations and

internal quotation marks omitted)); 2A Norman

Singer & Shambie Singer, Sutherland Statutes and

Statutory Construction § 48:6 (7th ed.), Westlaw

(database updated April 2025) (collecting cases and

noting that if a statute is ambiguous, “courts generally

view committee reports as the most persuasive indicia

of legislative intent” (internal quotation marks

Stat. 405, 448 (1985) (codified at 50 U.S.C. § 1622(a)(1)). This

development greatly weakened the effectiveness of the NEA as a

check on presidential authority, as Congress in most cases will

need a veto-proof supermajority to terminate an emergency

declaration. See Restoring Congressional Oversight over

Emergency Powers: Exploring Options to Reform the National

Emergencies Act: Hearing Before the S. Comm. on Homeland Sec.

& Governmental Affs., supra, at 8 (statement of Elizabeth

Goitein, Brennan Center for Justice). The lack of a ready means

for Congress to terminate emergency declarations, as originally

envisioned in the law, makes it even more important for the

judiciary to fulfill its own responsibility to adjudicate the

meaning of the law in a manner consistent with congressional

intent. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 395

(2024) (recognizing the judiciary’s obligation “to independently

interpret” statutes “and effectuate the will of Congress subject to

constitutional limits”).

omitted)). An earlier draft of NEA legislation

authorized the president to declare a national

emergency “[i]n the event the President finds that a

proclamation of a national emergency is essential to

the preservation, protection and defense of the

Constitution or to the common defense, safety, or wellbeing of the territory or people of the United States.”

S. 977, 94th Cong. § 201(a) (1975). One committee

report, referring to a nearly identical definition in a

prior version of the bill, had noted that it was

“deliberately cast in broad terms that makes it clear

that a proclamation of a state of national emergency

requires a grave national crisis.” S. Rep. No. 93-1193,

at 2 (1974), reprinted in NEA Source Book, supra, at

96. The Senate Committee on Government Operations

removed the language, not because it was too limiting,

but because the committee believed it was too broad.

As stated in the committee’s report:

[F]ollowing consultations with several

constitutional law experts, the committee

concluded that section 201(a) is overly

broad, and might be construed to delegate

additional authority to the President with

respect to declarations of national

emergency. In the judgment of the

committee, the language of this provision

was unclear and ambiguous and might have

been construed to confer upon the President

statutory authority to declare national

emergencies, other than that which he now

has through various statutory delegations.

The Committee amendment clarifies and

narrows this language. The Committee

decided that the definition of when a

President is authorized to declare a national

emergency should be left to the various

statutes which give him extraordinary

powers. The [NEA] is not intended to

enlarge or add to Executive power. Rather

the statute is an effort by the Congress to

establish clear procedures and safeguards

for the exercise by the President of

emergency powers conferred upon him by

other statutes.

S. Rep. No. 94-1168, at 3 (1976), reprinted in NEA

Source Book, supra, at 292 (emphasis added).

The committee’s solution proved to be flawed, as

most statutes in place today that confer power on the

president during national emergencies do not include

criteria beyond the issuance of the declaration. See A

Guide to Emergency Powers and Their Use, Brennan

Ctr. for Just. (July 1, 2025), https://perma.cc/QQ439TVE. It is nonetheless significant that Congress

believed even a definition limiting national

emergencies to grave national crises would be “overly

broad.” S. Rep. No. 94-1168, at 3, reprinted in NEA

Source Book, supra, at 292. The notion that Congress

intended the NEA as an affirmative delegation of

unlimited discretion—one that would allow the

president to use emergency powers at will rather than

of necessity—is contradicted by this and every other

aspect of the legislative history. Moreover, where

statutes granting emergency powers do include

criteria beyond the mere declaration of an emergency,

this legislative history underscores the importance of

strictly interpreting and enforcing those limitations.

C. The Origins and Purpose of IEEPA.

Enacted one year after the NEA and in response to

the same concerns over executive branch overreach,

IEEPA was Congress’s attempt to rein in presidential

power to take emergency economic action. In

particular, Congress was responding to abuses of the

Trading with the Enemy Act of 1917 (TWEA). See 241287 Pet. App. 4a–5a; 25-250 Pet. App. 15a–18a, 29a–

30a. TWEA originally authorized the president to take

economic measures against enemy nations, such as

blocking enemy property, during times of war. See

Andrew Boyle, Brennan Ctr. for Just., Checking the

President’s

Sanctions

Powers

(2021),

https://perma.cc/NWD2-VS8K. In 1933, however,

after President Roosevelt invoked TWEA to declare a

national bank holiday, see Proclamation No. 2039, 48

Stat. 1689 (Mar. 6, 1933), Congress hastily amended

it to apply during national emergencies as well as

wartime, see Emergency Banking Relief Act, ch. 1, § 2,

48 Stat. 1, 1–2 (1933). 4 In doing so, “Congress

recognized that it was conferring unusual powers on

the President which were justified by the g[r]avity of

the situation which the country faced, but which

should not normally be available to Presidents in

peacetime.” H.R. Rep. No. 95-459, at 4 (1977).

The NEA originally exempted TWEA from its

ambit. Because a small number of emergency powers,

The government states that Congress amended TWEA to

extend to national emergencies in 1941. See Gov’t Br. 13. In fact,

that amendment retained the “national emergency” language

added in 1933, see Emergency Banking Relief Act § 2, and

provided additional authority to take many of the specific

economic actions that are now a part of IEEPA, see 50 U.S.C.

§ 1702(a)(1)(B); First War Powers Act, 1941, ch. 593, § 301, 55

Stat. 838, 839–40.

including TWEA, were in regular use, Congress

temporarily excluded them “to allow for a careful

study of how to revise them in accordance with the

intent of the [NEA] without disrupting policies

currently in effect under their authority.” Id. at 6–7.

The resulting inquiry, conducted by the committees of

jurisdiction in both chambers, confirmed that

“[s]uccessive Presidents ha[d] seized upon” TWEA’s

open-ended language to turn it “through usage, into

something quite different from what was envisioned

in 1917.” Id. at 8–9; see also Boyle, supra, at 5. Indeed,

TWEA had “become essentially an unlimited grant of

authority for the President to exercise, at his

discretion, broad powers in both the domestic and

international economic arena, without congressional

review.” H.R. Rep. No. 95-459 at 7. The law’s

emergency authorities had “in effect become routine

authorities used to conduct the day-to-day business of

the Government.” 123 Cong. Rec. 424 (1977)

(statement of Rep. Jonathan B. Bingham, Chairman,

Subcomm. on Int’l Econ. Pol’y & Trade of the H.R.

Comm. on Int’l Rels.).

In response to these findings, Congress amended

TWEA to once again limit its application to instances

where Congress had declared war. Act of Dec. 28,

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

(codified at 50 U.S.C. § 4305(b)(1)); see H.R. Rep. No.

95-459, at 10. At the same time, Congress

promulgated a new statute—IEEPA—to provide for a

more constrained set of economic powers during

peacetime emergencies. Pub. L. No. 95-223, §§ 201–

208, 91 Stat. 1625, 1626–29 (1977) (codified as

amended at 50 U.S.C. §§ 1701–1710).

Congress intended the powers conferred under

IEEPA to be subject to significant “substantive

restrictions.” H.R. Rep. No. 95-459, at 10. The first

such restriction was the high bar to invoking the

statute. Congress perceived the requirement of

declaring a national emergency to be a significant

limitation, given that “emergencies are by their

nature rare and brief, and are not to be equated with

normal, ongoing problems.” Id. Even so, Congress

added a further constraint, providing that IEEPA’s

authorities may be used only to deal with an “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.” 50 U.S.C. § 1701(a). This language

is one of the primary distinctions between IEEPA and

the corresponding provisions of TWEA, and thus a

critical aspect of Congress’s attempt to ensure that

presidents would not invoke IEEPA in the absence of

real emergencies.

In addition, the authorities provided under IEEPA

were “limited to the regulation of international

economic transactions” and were “more restricted

than those available during time of war.” H.R. Rep.

No. 95-459, at 10–11. IEEPA specifies a list of powers

that the president may exercise over property or

transactions under U.S. jurisdiction in which a foreign

nation or person has any interest. See 50 U.S.C.

§ 1702(a)(1)(B). Neither that list nor the legislative

history includes any mention of the imposition of

tariffs.

Finally, IEEPA includes procedural requirements

to facilitate strong congressional oversight. The

president must consult with Congress “in every

possible instance” before invoking IEEPA and must

submit reports to Congress on a regular basis. 50

U.S.C. § 1703(a)–(c). Furthermore, because IEEPA’s

powers are exercised pursuant to a national

emergency declaration, Congress may block the use of

those powers by terminating the declaration on which

the IEEPA invocation relies. 50 U.S.C. § 1622(a)(1).

In short, the legislative history of IEEPA—like

that of the NEA—reflects a resolute focus on

restricting presidential use of emergency powers and

ensuring that the law is not used as a substitute for

non-emergency legislation.

II.

The Executive Orders Are Contrary to

Congress’s Intent in Enacting the NEA and

IEEPA.

The purpose and design of the NEA and IEEPA

demonstrate that the president does not have

unlimited discretion to declare national emergencies

where none exist; that limitations contained within

statutes that are available during national

emergencies, such as IEEPA, should be strictly

construed and enforced; that such statutes should not

be read to include powers not clearly granted; and that

emergency powers may not be used to displace

applicable non-emergency laws absent a genuine

emergency and clear authorization. The Executive

Orders collectively violate these core aspects of the

NEA and IEEPA, and this Court has both the

authority and the responsibility to enjoin the

violation.

A. The

President

Acted

Outside

Permissible Range of Discretion

Declaring a National Emergency.

Gesturing to the political question doctrine, the

government

contends

that

president’s

determination that an emergency exists is “not

amenable to judicial review.” Gov’t Br. 42. Not so.

To be sure, such determinations might ordinarily

be afforded substantial deference. See, e.g., United

States v. Yoshida Int’l, Inc., 526 F.2d 560, 579

(C.C.P.A. 1975) (noting that the existence of a national

emergency “normally” presents a “political question[]”

more appropriate for a political branch of government

than for the judiciary (emphasis added)). The political

question doctrine, however, does not bar judicial

intervention when a “discriminating inquiry into the

precise facts and posture of the particular case”

reveals an “obvious mistake” or “manifestly

unauthorized exercise of power.” Baker v. Carr, 369

U.S. 186, 214, 217 (1962); accord Sterling v.

Constantin, 287 U.S. 378, 399 (1932) (acknowledging

“a permitted range of honest judgment” in which

executive discretion may be exercised). Claims of

emergency are not exempt from this rule. This Court

has recognized, for instance, that the judiciary may

determine whether “[a] law depending upon the

existence of an emergency” remains valid “if the

emergency ceases.” Chastleton Corp. v. Sinclair, 264

U.S. 543, 547 (1924); see also id. (“[A] Court is not at

liberty to shut its eyes to an obvious mistake, when

the validity of the law depends upon the truth of what

is declared.”).

These cases present just such an instance. Above

all else, what emerges from the legislative histories of

the NEA and IEEPA is that Congress intended to

authorize the use of emergency powers to address true

emergencies only, and not ordinary problems that

presidents mislabel as emergencies. Although

Congress did not define “emergency” in either statute,

there are ample indications of how Congress

understood the term—and, in particular, what should

not qualify as an emergency under these laws. As

described in Part I, Congress believed that genuine

emergencies are “rare and brief, and are not to be

equated with normal, ongoing problems.” H.R. Rep.

No. 95-459, at 10.

Even without these indications, the word

“emergency” is not a cipher; it has a well-understood

definition. When Congress passed the NEA and

IEEPA, the term “emergency” was defined, as it is

today, as a sudden, unforeseen circumstance that

requires an immediate response. See Emergency,

Webster’s New Collegiate Dictionary 372 (9th ed.

1976) (“[A]n unforeseen combination of circumstances

or the resulting state that calls for immediate

action.”); Emergency, American Heritage Dictionary

427 (1st ed. 1969) (“A situation or occurrence of a

serious

nature,

developing

suddenly

and

unexpectedly, and demanding immediate action.”).

The government ignores the ordinary meaning of

“emergency,” contending that “nothing in the NEA or

IEEPA precludes emergencies resulting from

‘longstanding’ threats.” Gov’t Br. 43. But “[t]his Court

normally interprets a statute in accord with the

ordinary public meaning of its terms at the time of its

enactment.” Bostock, 590 U.S. at 654. Because there

is no evidence that Congress intended “emergency” to

have a specialized meaning in this context—and,

indeed, there is evidence that Congress intended to

prevent the use of emergency authorities to address

“ongoing problems,” H.R. Rep. No. 95-459, at 10—this

Court should interpret the term in keeping with its

ordinary meaning. See Feliciano v. Dep’t of Transp.,

605 U.S. ___, 145 S. Ct. 1284, 1291 (2025).

The “emergency” cited as the basis for most of the

challenged tariffs 5 is “persistent annual U.S. goods

trade deficits” and “structural imbalances in the

global trading system.” Exec. Order No. 14,257, 90

Fed. Reg. 15,041, 15,041 (Apr. 2, 2025). A “persistent”

set of circumstances, however, is neither sudden nor

unforeseen. To the contrary, a “persistent” and

“structural” problem is the very definition of a

“normal, ongoing” problem, which Congress believed

should not trigger emergency powers. See H.R. Rep.

No. 95-459, at 10. Trade imbalances with other

nations are indeed commonplace, as the challenged

Executive Order affirms, and have been so for

decades. See U.S. Trade Balance, Macrotrends,

https://perma.cc/V2VG-SZBT. Nor is it the case that

such imbalances have become suddenly, unexpectedly

worse. To the contrary, as a percentage of the U.S.

gross domestic product, the nation’s overall trade

imbalance is significantly less today than it was

twenty years ago. See id. Congress passed the NEA

and IEEPA precisely to prevent presidents from using

5 Because Plaintiffs V.O.S. et al. do not challenge the Executive

Orders that are specific to Canada, Mexico, and China, and

Plaintiffs Oregon et al. and Learning Resources et al. do not

address whether the circumstances underlying those orders

constitute an “emergency” or an “unusual and extraordinary

threat,” this brief does not reach those questions.

emergency powers to address such longstanding and

widespread issues.

Similarly, this Court need not blindly defer to the

government’s eleventh-hour attempt to reframe the

supposed “emergency” as a manufacturing shortfall

resulting from an economic “tipping point” brought on

by decades of trade of imbalances. See Dep’t of Com. v.

New York, 588 U.S. 752, 785 (2019) (noting that even

where the Court’s “review is deferential, . . . we are

not required to exhibit a naiveté from which ordinary

citizens are free” (internal quotation marks omitted)).

Nothing in the Executive Order hints at a sudden and

recent “tipping point” creating a new crisis in

manufacturing. That new claim is contradicted by the

government’s own data, which show that the output

and value of American manufacturing have been at or

near record highs for the past several years. See U.S.

Bureau of Lab. Stat., Manufacturing Sector: Real

Sectoral Output for All Workers, Fed. Rsrv. Bank of St.

Louis, https://perma.cc/PQV8-E24Q; U.S. Bureau of

Econ. Analysis, Real Value Added by Industry:

Manufacturing, Fed. Rsrv. Bank of St. Louis,

https://perma.cc/NYD5-QQ42.

President Trump’s behavior following the issuance

of the Executive Orders further undermines any claim

of “emergency.” By definition, an emergency—

particularly

one

posing

“unusual

and

extraordinary threat”—requires immediate action.

Yet President Trump has repeatedly pulled back from

imposing the full tariffs authorized by his Executive

Orders. See Chad P. Bown, Peterson Inst. for Int’l

Econ., Trump’s Trade War Timeline 2.0: An Up-toDate Guide (Oct. 17, 2025), https://perma.cc/KK8A-

337K. A circumstance that can be addressed on the

president’s chosen timeline is not an emergency.

Whatever forbearance courts might ordinarily

show in lawsuits challenging declarations of national

emergency, the president’s actions in this case exceed

the “permitted range of honest judgment” in which

presidents may act without judicial review in areas

normally committed to executive discretion. Sterling,

287 U.S. at 399. In determining that decades-long,

entrenched trade relationships constitute an

“emergency,” President Trump has made an “obvious

mistake” and has acted in a manner “manifestly

unauthorized” by law. Baker, 369 U.S at 214, 217.

B. Longstanding Trade Imbalances Do Not

Constitute

“Unusual

and

Extraordinary Threat.”

This Court has ample authority to review whether

IEEPA’s criterion of an “unusual and extraordinary

threat . . . to the national security, foreign policy, or

economy of the United States,” 50 U.S.C. § 1701(a),

has been met. Although some courts have held that

IEEPA invocations implicate the political question

doctrine, see, e.g., Beacon Prods. Corp. v. Reagan, 633

F. Supp. 1191, 1194–95 (D. Mass. 1986), every judge

to have reached the issue in the cases now before this

Court has correctly rejected this argument, see 25-250

Pet. App. 183a–90a (unanimous three-judge panel of

the Court of International Trade); id. at 86a–88a

(dissenting opinion of Judge Taranto, joined by three

additional Federal Circuit judges); see also Japan

Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221,

229–30 (1986) (emphasizing that “not every matter

touching on politics is a political question,” and

concluding that the case under review was justiciable

because it “call[ed] for applying no more than the

traditional rules of statutory construction, and then

applying this analysis to the particular set of facts

presented”).

Judicial review of IEEPA invocations accords with

the text and legislative histories of the NEA and

IEEPA. As discussed in Part I.C, Congress, in

enacting IEEPA, added the “unusual and

extraordinary threat” standard to prevent overuse of

the law’s exceptional powers. Congress intended for

such limiting language in specific emergency powers

to serve as key constraints on the executive power

presidents retained under the NEA. See supra Part

I.B. It is entirely implausible that Congress intended

for this critical limitation to be unenforceable. Indeed,

shortly before the Special Committee’s formation, one

of its co-chairs expressly faulted the “the courts” for

interpreting congressional grants of emergency

powers as “creating a virtually unlimited Executive

prerogative.” 118 Cong. Rec. 18368 (1972) (statement

of Sen. Charles Mathias), reprinted in NEA Source

Book, supra, at 15; see also id. (lamenting that

“neither Congress nor the courts has set criteria to

define the kind of crisis which would justify invocation

of these multifarious powers”); id., reprinted at NEA

Source Book, supra, at 16 (faulting courts for

upholding exercises of emergency powers that “clearly

represent[ed] an unconstitutional encroachment on

legislative authority”); cf. Calvary Chapel Dayton

Valley v. Sisolak, 140 S. Ct. 2603, 2615 (2020)

(Kavanaugh, J., dissenting) (“This Court’s history is

littered with unfortunate examples of overly broad

judicial deference to the government when the

government has invoked emergency powers . . . . The

court of history has rejected those jurisprudential

mistakes and cautions us against

deferential judicial approach . . . .”).

unduly

Even if courts owe substantial deference to a

president’s assessment of whether particular

circumstances constitute a threat to national security,

no special expertise or political judgment is required

for a court to determine whether those circumstances

are “unusual” or “extraordinary”—particularly where

the frequency and extent of such circumstances are a

matter of public record. Courts assess whether

circumstances are “unusual” or “extraordinary” in an

array of constitutional and statutory contexts, see,

e.g., Atkins v. Virginia, 536 U.S. 304, 316 (2002)

(concluding that execution of intellectually disabled

offenders had “become truly unusual” based on

infrequency of its application); Magana-Magana v.

Bondi, 129 F.4th 557, 570 (9th Cir. 2025) (interpreting

“extraordinary circumstances” in immigration code

and noting that “courts routinely determine whether

‘extraordinary circumstances’ exist”), including those

explicitly involving national defense considerations,

see, e.g., Filtration Dev. Co. v. United States, 60 Fed.

Cl. 371, 383, 387 (2004) (interpreting “unusual and

compelling urgency” in military procurement statute

to require time-bounded, not indefinite, exigency).

President Trump’s description of trade imbalances

as “persistent” and “structural” refutes any claim that

they are “unusual and extraordinary” in nature. So,

too, does the president’s imposition of separate tariffs

on nearly every nation. See Exec. Order No. 14,257, 90

Fed. Reg. at 15,045, 15,049–50. President Trump has

even imposed tariffs on the several dozen countries

with which the United States runs a trade surplus,

claiming that the U.S. national security and economy

are under threat in those instances because “the

accumulation of tariff and non-tariff barriers on U.S.

exports may make that surplus smaller than it would

have been without such barriers.” Id. at 15,043. As the

caselaw adjudicating what is “unusual” or

“extraordinary” would suggest, a circumstance that

persists indefinitely with respect to every single

nation on earth simply is not “unusual and

extraordinary.” Indeed, it is so far from meeting that

standard that judicial intervention would be

warranted even if the political question doctrine

might otherwise apply. A finding that a longstanding

and universal circumstance is “unusual and

extraordinary” is an “obvious mistake,” Baker, 369

U.S. at 214, that exceeds “a permitted range of honest

judgment,” Sterling, 287 U.S. at 399, rendering

President Trump’s worldwide tariffs “manifestly

unauthorized” by law, Baker, 369 U.S. at 217.

C. IEEPA Does Not Authorize the Imposition

of Tariffs.

The legislative histories of the NEA and IEEPA

bear directly on the proper interpretation of IEEPA’s

scope. The courts below cited this Court’s admonition

that executive actions with major political or economic

significance must be clearly authorized by Congress.

See 25-250 Pet. App. 34a–38a (Federal Circuit), 170a–

172a (CIT); 24-1287 Pet. App. 23a (district court).

There is an independent reason, however, to require

clear authorization by Congress when the president

takes action under the NEA and IEEPA—laws

designed to ensure that emergency powers would be

used sparingly and in accordance with their

limitations. As Congress recognized in passing the

NEA and IEEPA, the powers expressly granted to the

president during a national emergency are extremely

potent and vulnerable to exploitation or abuse.

Allowing a president to expand these powers beyond

their already sweeping scope by inferring powers not

clearly conferred would create exactly the kind of

danger Congress sought to mitigate. The fact that the

powers expressly granted by IEEPA are “broad,” as

the government observes, Gov’t Br. 15, merely

underscores the importance of resisting efforts to

broaden them even further beyond their textual

limits.

IEEPA does not clearly authorize the imposition of

tariffs. The long list of presidential actions that it

authorizes does not include imposing tariffs or

leveling taxes or duties. Construing the word

“regulate” to encompass the imposition of tariffs is a

strained reading of the term that would render it an

outlier from the other actions on the list, all of which

relate to requiring or prohibiting transactions rather

than taxing them. See 24-1287 Pet. App. 24a; 25-250

Pet. App. 33a. The legislative history of IEEPA, which

describes intended uses for the law, is similarly devoid

of any mention of tariffs. See H.R. Rep. No. 95-459, at

14–15; S. Rep. No. 95-466, at 5 (1977). The notion that

Congress intended to create a sweeping new

emergency tariff power sub silentio is all the more

unlikely given that Congress had recently enacted

broad tariff legislation. See Trade Act of 1974, Pub. L.

No. 93-618, 88 Stat. 1978 (codified as amended at 19

U.S.C. §§ 2101–2497b). Until now, no president had

ever used IEEPA for tariffs in its nearly fifty-year

history, itself a powerful sign that the law does not

authorize such a measure. See Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 386 (2024) (“‘[T]he

longstanding practice of the government’—like any

other interpretive aid—‘can inform [a court’s]

determination of what the law is.’” (second alteration

in original) (internal quotation marks omitted)

(quoting NLRB v. Noel Canning, 573 U.S. 513, 525

(2014))); 25-250 Pet. App. 35a–36a; 24-1287 Pet. App.

27a–28a. In short, far from IEEPA providing the clear

authorization that should be required when

emergency powers are invoked, multiple factors

suggest that Congress did not intend for IEEPA to

authorize tariffs.

D. Upholding the Executive Orders Would

Permit Circumvention of Tariff Laws.

In passing the NEA and IEEPA, Congress

emphasized that emergency powers should not be

used as a substitute for regular, non-emergency

legislation. 6 See H.R. Rep. No. 94-238, at 2 (1975)

(noting that the NEA “will make it possible for our

Government to function in accordance with regular

and normal provisions of law rather than through

special exceptions and procedures which were

intended to be in effect for limited periods during

specific emergency conditions”); H.R. Rep. No. 95-459,

at 11 (directing that “authority for routine,

6 Congress did contemplate that IEEPA might be used, as a last

resort, to control exports in the event of a lapse in non-emergency

export control legislation. See H.R. Rep. No. 95-459, at 13. There

are no such gaps to fill when it comes to non-emergency tariff

legislation, as discussed herein. Similarly, while “Congress has

for decades acquiesced in the use of IEEPA as a substitute for

ordinary sanctions legislation,” see Brief of the Brennan Center

for Justice & the Cato Institute as Amici Curiae at 17, Sierra

Club v. Trump, 977 F.3d 853 (9th Cir. 2020) (Nos. 19-17501, 1917502, 20-15044) (emphasis added), there is no such history of

acquiescence with respect to the imposition of tariffs under

IEEPA because no previous president has used IEEPA for that

purpose.

nonemergency regulation of international economic

transactions which has heretofore been conducted

under [TWEA] should be transferred to other

legislation”). By the same token—and even more

importantly—emergency powers should never be used

to circumvent restrictions or prohibitions included in

non-emergency legislation absent a true emergency

and clear authorization.

Here, Congress has established a detailed

statutory scheme for tariffs. The authority to impose

tariffs is expressly committed to Congress under the

Constitution, as the first of its powers. See U.S. Const.

art. I, § 8, cl. 1. Pursuant to that authority, Congress

has passed multiple statutes explicitly authorizing

tariffs in a range of circumstances. See, e.g., Uruguay

Round Agreements Act, Pub. L. No. 103-465, 108 Stat.

4809 (1994); Trade Act of 1974. These laws give the

president and U.S. Trade Representative significant

discretion to impose or adjust tariffs in response to

specified circumstances, such as national security

threats (19 U.S.C. § 1862(b)–(c)); injury to domestic

industry (19 U.S.C. §§ 2251–2255); trade agreement

violations by other nations (19 U.S.C. §§ 2411–2420);

discrimination against U.S. commerce (19 U.S.C.

§ 1338); and serious trade imbalances (19 U.S.C.

§ 2132). Where presidents have sought to raise or

lower tariffs under other circumstances, they have

availed themselves of Trade Promotion Authority

laws, which provide for expedited congressional

approval of trade agreements that meet specified

negotiating objectives and consultation/notification

requirements. See Christopher A. Casey & Cathleen

D. Cimino-Isaacs, Cong. Rsch. Serv., IF10038, Trade

Promotion

Authority

(TPA)

(2024),

https://perma.cc/NZ59-PQZ9.

Construing IEEPA to authorize the imposition of

tariffs without any of the procedural and substantive

restrictions of these laws would allow the president to

bypass an elaborate legislative scheme in an area of

plenary congressional authority. See 24-1287 Pet.

App. 24a–27a; 25-250 Pet. App. 30a–31a. Such a

result would be permissible only if a true emergency

existed, the criteria for invoking IEEPA were met, and

IEEPA clearly permitted the imposition of tariffs.

None of those conditions is present here. See supra

Parts II.A, B, & C.

Moreover, even if IEEPA could be interpreted as

authorizing tariffs in some circumstances, it still could

not be interpreted as authorizing the tariffs imposed

under the challenged Executive Orders. Congress has

enacted legislation—Section 122 of the Trade Act of

1974—specifically authorizing the president to impose

tariffs in response to “large and serious United States

balance-of-payment

deficits”

(including

trade

imbalances), but capping the size and duration of

those tariffs. See 19 U.S.C. § 2132. Congress thus

established parameters for tariffs addressing the very

circumstances identified in Executive Order 14,257.7

As the Court of International Trade held, construing

IEEPA to authorize tariffs in these circumstances

would permit circumvention of Section 122 and would

7 Citing Yoshida, the government argued below that Section 122

addresses “foreseeable events,” while IEEPA is intended for

“unforeseeable events.” Opening Brief for Appellants at 50,

V.O.S. Selections, Inc. v. Trump, 149 F.4th 1312 (Fed. Cir. 2025)

(No. 25-1812) (emphasis in original). That argument strongly

supports the plaintiffs’ position. There is nothing remotely

unforeseeable about “persistent” and “structural” trade

imbalances that have existed for decades. Exec. Order No.

14,257, 90 Fed. Reg. at 15,041. Tellingly, the government no

longer advances that argument. See Gov’t Br. 37–39.

render its limitations a nullity. 25-250 Pet. App.

178a–81a. The Executive Orders imposing tariffs on

Canada, Mexico, and China, which cite the protection

of national security as a justification, similarly

circumvent and nullify the requirements set forth in

Section 232 of the Trade Expansion Act of 1962, which

governs the adjustment of imports for nationalsecurity purposes. See 19 U.S.C. § 1862(b)–(c). This

result violates not only basic canons of statutory

construction, but also Congress’s intent, in enacting

the NEA and IEEPA, to end the practice of presidents

substituting emergency powers for “regular and

normal provisions of law.” H.R. Rep. No. 94-238, at 2;

H.R. Rep. No. 95-459, at 7, 10–11.

III. Upholding the Executive Orders Would

Create a Dangerous Precedent.

A ruling upholding the challenged Executive

Orders would have far-reaching implications. In the

future, presidents would know that they could invoke

emergency powers to bypass Congress in adopting

highly controversial policies, like worldwide tariffs,

that Congress might not be willing to support—or that

would violate the law absent a declaration of national

emergency. A veto-proof majority of Congress would

then be required to put an end to the contested policy.

This would fundamentally upset the balance of power

between the president and Congress.

Indeed, if given the green light to declare

emergencies to evade Congress, presidents could

invoke powers even more potent than the one that

President Trump has relied on here. The Brennan

Center has catalogued 137 statutory provisions that

become available to presidents when they declare a

national emergency, the vast majority of which

contain no substantive criteria for invocation beyond

an emergency declaration. See A Guide to Emergency

Powers and Their Use, supra. Although some of these

powers are narrowly crafted, others are sweeping, and

their invocation as a means of short-circuiting

Congress could have profound consequences. See, e.g.,

47 U.S.C. § 606(c) (permitting the president to take

over

shut

down

certain

wireless

telecommunications facilities, devices, and equipment

during a national emergency); 49 U.S.C. § 114(g)

(delegating

broad

authority

over

domestic

transportation to the Transportation Security

Administrator during a national emergency); 10

U.S.C. § 712(a) (allowing the president to detail any

member of the U.S. armed forces to “any . . . country

that he considers it advisable to assist in the interest

of national defense”); 50 U.S.C. §§ 1513, 1515

(authorizing the president to suspend restrictions on

overseas

deployment,

testing,

development,

transportation, storage, and disposal of lethal

chemical or biological warfare agents).

If this Court upholds President Trump’s actions in

the current case, such formidable powers could

henceforth become available based simply on a

president’s unilateral claim that he or she needs them,

and against the wishes of a majority of Congress. Few

presidents would be able to resist such an open

invitation to unchecked power. At a minimum,

government by presidential emergency order would

likely become far more common than it has been in the

past. President Trump has already far outpaced the

rate at which any previous president has used

statutory emergency powers since the enactment of

the NEA. See Declared National Emergencies Under

the National Emergencies Act, Brennan Ctr. for Just.

(Oct. 20, 2025), https://perma.cc/4J9N-28DP (listing 9

national emergency declarations during President

Trump’s first 9 months in office). To the extent rule by

emergency power is becoming a standard feature of

U.S. government, it is inconsistent with Congress’s

intent when it passed the NEA and with the

constitutional separation of powers.

CONCLUSION

For the reasons stated above, this Court should

affirm.

Respectfully submitted,

/s/ Leah J. Tulin

Leah J. Tulin

Counsel of Record

Elizabeth Goitein

Katherine Yon Ebright

Hannah James

BRENNAN CENTER FOR

JUSTICE AT NYU SCHOOL OF

LAW

777 6th Street NW, Suite 1100

Washington, DC 20001

(202) 650-6397 (telephone)

(202) 223-2683 (fax)

tulinl@brennan.law.nyu.edu

goiteine@brennan.law.nyu.edu

ebrightk@brennan.law.nyu.edu

jamesh@brennan.law.nyu.edu

Counsel for Amicus Curiae the

Brennan Center for Justice

Dated: October 24, 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.