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

_________

D ONALD J. T RUMP , P RESIDENT OF THE U NITED

S TATES , ET AL ., Petitioners,

v.

V.O.S. S ELECTIONS , I NC ., ET AL ., Respondents.

_________

On Writ Of Certiorari To The United States Court Of

Appeals For The Federal Circuit

_________

PRINCESS AWESOME ET AL.’s

BRIEF AMICI CURIAE IN SUPPORT OF

RESPONDENTS IN N O . 25-250

_________

M OLLY N IXON

J OSHUA R OBBINS

ASHLEY TORKELSON

LEVINE

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 1000

Arlington, VA 22201

O LIVER J. D UNFORD

Counsel of Record

Pacific Legal Foundation

4440 PGA Blvd., Suite 307

Palm Beach Gardens, FL

33410

(916) 503-9060

odunford@pacificlegal.org

Counsel for Amici Curiae

QUESTIONS PRESENTED

1. Whether the International Emergency Economic

Powers Act (IEEPA), Pub. L. No. 95-223, Tit. II, 91

Stat. 1626, authorizes the tariffs imposed by President Trump pursuant to the national emergencies declared or continued in Proclamation 10,886 and Executive Orders 14,157, 14,193, 14,194, 14,195, and

14,257, as amended.

2. If IEEPA authorizes the tariffs, whether the statute unconstitutionally delegates legislative authority

to the President.

3. Whether the district court in No. 24-1287 lacked

subject-matter jurisdiction.

ii

TABLE OF CONTENTS

Interest of Amici Curiae ............................................. 1

Introduction and Summary of Argument .................. 3

Argument .................................................................... 3

I. IEEPA Unconstitutionally Transfers Legislative

Power To The President. .................................... 3

A. The Constitution requires Congress to

establish a general policy and impose

boundaries when it confers authority. .......... 4

B. IEEPA delegates vast legislative power

without a policy objective or limits ............... 5

II. Foreign Policy Implications Arising From

The Exercise Of Delegated Powers Do Not

Change The Constitutional Analysis ............... 17

A. This Court’s non-delegation precedents

confirm the doctrine’s viability and

importance in the foreign policy context .... 18

B. The President has no independent

Article II authority to impose tariffs .......... 21

Conclusion ................................................................. 29

iii

TABLE OF AUTHORITIES

Cases:

American Insurance Association v. Garamendi,

539 U.S. 396 (2003) ........................................ 25-26

American Power & Light Co. v. SEC,

329 U.S. 90 (1946) ................................................. 4

Baker v. Carr,

369 U.S. 186 (1962) ............................................. 17

Cargo of the Brig Aurora v. United States,

11 U.S. 382 (1813) .......................................... 18-19

Ctr. for Bio. Diversity v. Trump,

453 F. Supp. 3d 11 (D.D.C. 2020) ....................... 13

El-Shifa Pharm. Indus. Co. v. United States,

607 F.3d 836 (D.C. Cir. 2010) ....................... 10, 27

FCC v. Consumers’ Rsch.,

145 S.Ct. 2482 (2025) ................ 4-5, 7-9, 12, 21, 26

Fed. Energy Admin. v. Algonquin SNG, Inc.,

426 U.S. 548 (1976) ........................................ 20-21

Gundy v. United States,

588 U.S. 128 (2019) ............................ 17, 20, 26-27

INS v. Chadha,

462 U.S. 919 (1983) ............................................. 14

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

276 U.S. 394 (1928) ......................................... 3, 20

Japan Whaling Ass’n v. Am. Cetacean Soc.,

478 U.S. 221 (1986) ............................................. 11

Loving v. United States,

517 U.S. 748 (1996) ............................................. 28

Marland v. Trump,

498 F. Supp. 3d 624 (E.D. Pa. 2020) ................... 15

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ........................................ 19-20

iv

Mistretta v. United States,

488 U.S. 361 (1989) ............................................... 7

Moers v. City of Reading,

21 Pa. 188 (1853) ................................................. 20

Nat’l Pork Producers Council v. Ross,

598 U.S. 356 (2023) ............................................... 9

OPP Cotton Mills, Inc. v. Adm’r of Wage

& Hour Div., Dept. of Lab.,

312 U.S. 126 (1941) ............................................... 4

Panama Refin. Co. v. Ryan,

293 U.S. 388 (1935) ............................................. 28

Prize Cases,

67 U.S. 635 (1862) ............................................... 24

Rodriguez v. United States,

480 U.S. 522 (1987) ............................................... 9

Trump v. Hawaii,

585 U.S. 667 (2018) ............................................. 12

Trump v. J. G. G.,

604 U.S. 670 (2025) ............................................. 12

United States v. Bozarov,

974 F.2d 1037 (9th Cir. 1992) ........................ 11-12

United States v. Curtiss-Wright Export Co.,

299 U.S. 304 (1936) ............................................. 25

United States v. Mazurie,

419 U.S. 544 (1975) ............................................. 21

United States v. Rock Royal Co-op,

307 U.S. 533 (1939) ........................................ 15-16

Wayman v. Southard,

23 U.S. 1 (1825) ................................................. 5, 8

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ............................................ 4-5

Yakus v. United States,

321 U.S. 414 (1944) ................................ 4-5, 11, 16

v

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ............................................. 23

Zemel v. Rusk,

381 U.S. 1 (1965) ................................................. 26

Zivotofsky v. Kerry,

576 U.S. 1 (2015) ................................. 22-25, 27-28

U.S. Constitution:

U.S. Const. amend. V ................................................ 15

U.S. Const. art. I, § 1 .................................................. 4

U.S. Const. art. I, § 8 ....................................... 4, 23-24

U.S. Const. art. I, § 8, cl. 1........................................ 22

U.S. Const. art. II, § 2 ............................................... 23

U.S. Const. art. II, § 3 ............................................... 23

Statutes:

50 U.S.C. §§ 1701-1710 ............................................... 1

50 U.S.C. § 1701 ........................................................ 13

50 U.S.C. § 1701(b) ..................................................... 9

50 U.S.C. § 1702(a)(1)(A) ............................................ 6

50 U.S.C. § 1702(a)(1)(B) ............................................ 6

50 U.S.C. § 1702(b)(1) ............................................... 15

50 U.S.C. § 1702(b)(2) ............................................... 15

50 U.S.C. § 1702(b)(3) ............................................... 15

50 U.S.C. § 1702(b)(4) ............................................... 15

Act of Apr. 10, 2023, Pub. L. No. 118-3,

137 Stat. 6 ............................................................ 16

International Emergency Economic Powers Act,

Pub. L. No. 95-223, Tit. II (1977) ...................... 1, 7

Pub. L. No. 99-93, 99 Stat. 405 (1985) ..................... 14

vi

Miscellaneous:

Defs.’ Resp. in Opp’n to Appl. for a TRO,

V.O.S. Selections, Inc. v. Trump, No. 25-00066,

(Ct. Int’l Trade May 21, 2025) Dkt. No. 12......... 10

Defs.’ Resp. in Opp’n to Mot. for Summ. J.,

Princess Awesome v. U.S. Customs & Border

Protection, No. 25-00078,

(Ct. Int’l Trade May 23, 2025) Dkt. No. 16......... 14

H.R. Conf. Rep. No. 103-482 (1994) ......................... 15

Joint Stipulation, Princess Awesome v. Customs &

Border Protection, No. 25-00078

(Ct. Int’l Trade May 28, 2025) Dkt. No. 17........... 2

Mem. in Supp. of Defs.’ Mot. to Dismiss,

Vassiliades v. Blinken, No. 1:24-cv-01952,

(D.D.C. Sept. 17, 2024) Dkt. No. 15-1 ................. 10

Michael Greene, Congressional Research Service,

National Emergencies Act: Expedited Procedures

in the House and Senate

(updated Feb. 3, 2025) ......................................... 15

Paperless Order, Princess Awesome v. U.S. Customs

& Border Protection, No. 25-00078,

(Ct. Int’l Trade June 16, 2025) Dkt. No. 21 .......... 2

Pls.’ Mot. for Summ. J., Princess Awesome v. U.S.

Customs & Border Protection, No. 25-00078,

(Ct. Int’l Trade May 19, 2025) Dkt. No. 14......... 14

Opening Br. for Appellants,

V.O.S. Selections, Inc. v. Trump,

Nos. 2025-1812, -1813,

(Fed. Cir. June 24, 2025) Dkt. No. 61-1 ................ 8

Thomas Jefferson to James Madison, 15 March 1789,

Founders Online, National Archives,

https://tinyurl.com/n96hpntr .............................. 23

INTEREST OF AMICI CURIAE 1

Princess Awesome, LLC; Stonemaier, LLC; 300

Below, Inc.; Upward Glance, LLC d/b/a Quent Cordair

Fine Art; KingSeal Corporation d/b/a Wesco Enterprises, Inc.; Mischief, LLC d/b/a Mischief Toy Store;

Spielcraft Games, LLC; Rookie Mage Games, LLC;

XYZ Game Labs, Inc.; Tinkerhouse, Inc.; and Reclamation Studio, LLC d/b/a WitsEnd Mosaic (Amici) are

small American businesses in various fields—clothing, board games, arts and crafts, toys, foodservice

products, and mechanical services.

All but one Amici directly import goods from

abroad—from Argentina, Bangladesh, China, India,

Italy, Peru, Taiwan, and Turkey—and all are suffering significant harm because of the tariffs imposed by

the President, purportedly pursuant to the International Emergency Economic Powers Act, 50 U.S.C. §§

1701-10 (IEEPA). All but one Amici have paid these

tariffs or, to import their products, were obligated to

pay. And because of the arbitrary and ever-changing

tariffs, exemptions, and reversals, Amici find it all but

impossible to plan for the future.

Accordingly, Amici filed their own challenge to the

IEEPA tariffs in the U.S. Court of International Trade

(CIT). Princess Awesome, LLC v. U.S. Customs and

Border Protection, No. 25-00078 (Ct. Int’l Trade). The

CIT, after entering its judgments in V.O.S. Selections,

Inc. v. United States, No. 25-00066, and Oregon v. U.S.

Dep’t of Homeland Security, No. 25-00077, granted the

government’s motion for a stay of Amici’s case pending

1 This amicus brief was not authored in whole or in part by

counsel for any party. No party or counsel for a party, and no

person other than Amici or their counsel, contributed money to

fund this brief’s preparation or submission.

2

a final, unappealable judgment in those cases, which

are the subject of the Writ of Certiorari in Case No.

25-250 here. Paperless Order, Princess Awesome, No.

25-00078 (June 16, 2025) Dkt. No. 21.

In Amici’s lawsuit, the government stipulated that

it will not oppose the CIT’s authority to order reliquidation of Amici’s entries subject to the challenged

IEEPA tariffs and will refund any IEEPA duties found

to have been unlawfully collected after such an order.

Joint Stipulation, Princess Awesome, No. 25-00078

(May 28, 2025) Dkt. No. 17. Amici are thus directly

interested in—and their recovery will almost certainly

be affected by—the Court’s decision in this case. Accordingly, Amici file this brief in support of the V.O.S.

Selections, Inc. Respondents to emphasize IEEPA’s

constitutionally impermissible transfer of legislative

power to the President.

3

INTRODUCTION AND

SUMMARY OF ARGUMENT

IEEPA unconstitutionally delegates Congress’s

tariff and foreign-commerce regulation powers to the

President. The statute provides no policy to guide the

President’s exercise of its sweeping authorities and

contains no meaningful limits on that exercise or

standards by which courts can determine whether the

President is acting within the statutory grant.

The government’s attempt to escape judicial scrutiny for any actions that implicate foreign affairs is

unsupported in the Constitution and contrary to the

Court’s precedents, which instead reflect this institution’s centuries-old willingness to defend and apply

the Constitution’s separation-of-powers principles in

myriad contexts, including international trade, foreign affairs, and even war. The Court’s “intelligible

principle” formulation itself comes from a tariff case.

See J.W. Hampton, Jr., & Co. v. United States, 276

U.S. 394, 409 (1928).

Accordingly, if the Court concludes that the President was within IEEPA’s delegation of authority in

imposing the tariffs at issue, it should nevertheless

hold that such actions were taken pursuant to an unconstitutional transfer of Congress’s power and affirm

the judgement below on that ground.

ARGUMENT

I. IEEPA Unconstitutionally Transfers Legislative Power To The President.

If the Court concludes that IEEPA authorizes the

President’s tariffs (though it does not, for the reasons

explained in the challengers’ briefs), the President’s

imposition of tariffs in reliance on IEEPA authority

4

cannot be upheld because the statute unconstitutionally transfers legislative power to the President.

A. The Constitution requires Congress to establish a general policy and impose

boundaries when it confers authority.

The Constitution vests in Congress “all legislative

Powers herein granted[,]” including the power to lay

taxes, duties, imposts, and excises, and the power to

regulate commerce with foreign nations. U.S. Const.

art. I, §§ 1, 8. This Court has made clear that the Constitution “permits no delegation of those powers.”

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472

(2001). “Legislative power,” the Court has held, “belongs to the legislative branch, and to no other.” FCC

v. Consumers’ Rsch., 145 S.Ct. 2482, 2496 (2025).

Accordingly, Congress may not vest any implementing discretion unless it “clear[ly]” shows “both”

[1] “‘the general policy’” that the Executive Branch

“must pursue and [2] ‘the boundaries of its delegated

authority.’” Consumers’ Rsch., 145 S.Ct. at 2497

(quoting American Power & Light Co. v. SEC, 329 U.S.

90, 105 (1946) (brackets removed). And Congress

must provide “sufficient standards to enable both ‘the

courts and the public [to] ascertain whether the [government]’ has followed the law.” Ibid. (quoting OPP

Cotton Mills, Inc. v. Adm’r of Wage & Hour Div., Dept.

of Lab., 312 U.S. 126, 144 (1941)).2

2 The “essentials of the legislative function are the determi-

nation of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct . . . .” Yakus v.

United States, 321 U.S. 414, 424 (1944). If a statute does not

provide “the objective to be sought,” id. at 423, or if “there is an

absence of standards for the guidance” of the President, “so that

5

Key to this determination is “the character of the

power given,” which requires an “inquir[y] into its extent.” Wayman v. Southard, 23 U.S. 1, 43 (1825). This

is so because the “degree” of “acceptable” discretion

“varies according to the scope of the power congressionally conferred.” Consumers’ Rsch., 145 S.Ct. at

2496-97 (quoting Whitman, 531 U.S. at 475). Here,

because the President’s actions “affect the entire national economy,” Congress must provide “substantial

guidance.” Whitman, 531 U.S. at 475. For the Constitution demands that the “important subjects” “be

entirely regulated by the legislature itself.” Wayman,

23 U.S. at 43.

Accordingly, as discussed next, if the Court concludes that IEEPA authorizes the President to “tax

Americans’ import purchases at any rate, for any

good, from any place, for any length of time,” V.O.S.

Br. 47, based on unreviewable “emergency” declarations, then IEEPA unlawfully delegates legislative

powers to the President.

B. IEEPA delegates vast legislative power

without a policy objective or limits.

1. IEEPA confers sweeping—and, according to the

government, unreviewable—authority on the President. Granting him prerogatives at the core of Congress’s power to regulate foreign commerce, IEEPA

authorizes the President to, among other things, “investigate, regulate, or prohibit” “any transactions in

foreign exchange,” bank transfers “involv[ing] any interest of any foreign country or a national[,]” “by any

it would be impossible in a proper proceeding to ascertain

whether the will of Congress has been obeyed,” then the statute

has not imposed either the policy guidance or the limiting standards required to survive a non-delegation challenge. Id. at 426.

6

person, or with respect to any property, subject to the

jurisdiction of the United States.”

50 U.S.C.

§ 1702(a)(1)(A) (emphasis added).

It also allows the President to investigate, block,

regulate, direct, compel, nullify, void, prevent, or prohibit:

any acquisition, holding, withholding, use,

transfer, withdrawal, transportation, importation or exportation of, or dealing in, or

exercising any right, power, or privilege

with respect to, or transactions involving,

any property in which any foreign country or

a national thereof has any interest by any

person, or with respect to any property, subject to the jurisdiction of the United States.

Id. § 1702(a)(1)(B) (emphasis added).

Critically, under the government’s reading, IEEPA

authorizes the President to impose tariffs of any

amount on imports from any country in the world for

any reason, for any amount of time, so long as the

President identifies an “emergency.” See U.S. Br. at

14 (“Congress placed only procedural, not substantive,

limits on national-emergency declarations, giving itself principal oversight authority.”).

The government acknowledges—indeed, it insists—that the scope of power conferred by IEEPA is

immense. See, e.g., U.S. Br. at 25 (describing IEEPA’s

authority grants as “nine intentionally capacious

verbs” that reflect a “broad and overlapping panoply

of authorities”); id. at 29 (“IEEPA covers the waterfront: from ‘compel’ to ‘prohibit’ and everything in between (‘regulate’)—the common quality being their

breadth.”).

7

The government goes even further, acknowledging

that IEEPA may authorize unconstitutional actions.

U.S. Br. at 30-31. Its position appears to be, rather

than “rob[bing] IEEPA of its intended breadth,” U.S.

Br. at 31, the law should be read as permissibly granting the President unlimited authority, leaving it to executive restraint or judicial intervention to identify

and preclude the unconstitutional applications. But

see Mistretta v. United States, 488 U.S. 361, 415 (1989)

(Scalia, J., dissenting) (“Members of Congress could

not . . . vote all power to the President and adjourn

sine die.”).

2. IEEPA sets forth no policy objective to be

achieved through its delegated authorities—and it

fails to provide “sufficient standards to enable both

‘the courts and the public [to] ascertain whether the

[government]’ has followed the law.” Consumers’

Rsch., 145 S.Ct. at 2497 (citation omitted). In Consumers’ Research, the Court’s most recent non-delegation precedent, it determined that the “policy [the

statute] expresses is clear and limiting. If . . . a substantial majority of Americans has access to a communications service that is both affordable and essential

to modern life, then other Americans should have access to that service too.” Consumers’ Rsch., 145 S.Ct.

at 2507. That discernible policy stands in stark contrast with IEEPA, which contains no articulation of

any policy goal to guide the President’s use of its powers. International Emergency Economic Powers Act,

Pub. L. No. 95-223, Tit. II (1977).

The government attempts to locate a policy objective in IEEPA, suggesting it is “to deal with certain

foreign threats that constitute an emergency.” U.S.

Br. at 22; see also id. at 46. That is unpersuasive at

best, disingenuous at worst. Telling the President to

8

“deal with” something is not a policy objective that the

executive “must pursue.” Consumers’ Rsch., 145 S.Ct.

at 2497. It’s a legislative abdication—inviting the executive to establish policy.

The absence of a policy objective in IEEPA is highlighted by the government’s own description of its actions. In this Court, it says that “the imposition of

tariffs under” IEEPA is “the Administration’s [not

Congress’s] most significant economic and foreign-policy initiative.” U.S. Pet. at 2 (emphasis added). Below,

the government stated that the IEEPA tariffs were

imposed by the President because “in his judgment

they are necessary and appropriate to address what

he has determined are grave threats to the United

States’s national security and economy.” Opening Br.

for Appellants, V.O.S. Selections, Inc. v. Trump, Nos.

2025-1812, -1813, Dkt. No. 61-1 at 2 (emphasis

added). Further emphasizing that the policy decisions

here were the President’s, not Congress’s, the government stressed that “the President’s plan to impose

such tariffs . . . was a key component of his successful

campaign for office.” Id. at 2-3 (emphasis added). The

President’s imposition of tariffs pursuant to IEEPA

thus cannot be characterized as the mere execution of

congressional policy decisions (found in IEEPA or any

other law). Whether to impose tariffs is itself the policy decision, the “important subjects.” Wayman, 23

U.S. at 43. As such, Congress may not abandon them

to the President.

Finally, in its merits brief here, the government

states that “the President and his Cabinet officials

have determined that the tariffs are promoting peace

and unprecedented economic prosperity . . . .” U.S. Br.

at 11. Peace and economic prosperity are laudable

9

policy objectives, but they are not found in IEEPA (because no policy objective can be found in IEEPA).

Even if such policy goals were included, they would

not establish a general policy sufficient to survive a

non-delegation challenge because the myriad tradeoffs achieving such amorphous results would require

precisely the legislative decisions that Congress alone

must make. See, e.g., Rodriguez v. United States, 480

U.S. 522, 526 (1987) (“Deciding what competing values will or will not be sacrificed to the achievement of

a particular objective is the very essence of legislative

choice.”); see also Nat’l Pork Producers Council v.

Ross, 598 U.S. 356, 382 (2023) (emphasizing that it is

the role of lawmakers to weigh “competing” “incommensurable” values).

3. Even if IEEPA “clear[ly]” identified a policy that

the President “must pursue,” Consumers’ Rsch., 145

S.Ct. at 2497—though it does not—it still runs afoul

of the non-delegation doctrine because it imposes no

meaningful constraints on the exercise of the delegated authorities.

At the outset, the government’s position is that

none of IEEPA’s substantive limitations—i.e., limiting

the exercise of its authorities only “to deal with an unusual and extraordinary threat with respect to which

a national emergency has been declared,” 50 U.S.C.

§ 1701(b)—are meaningful enough to be justiciable.

See U.S. Br. at 21 (describing the President’s determinations as “essentially judicially unreviewable”); id. at

40 (asserting that whether a given action “deals with”

an identified threat or emergency “resists meaningful

judicial review because of its discretion-laden nature

and the lack of judicially manageable standards”); id.

at 42 (stating that whether a threat is unusual and

extraordinary is “not amenable to judicial review”).

10

Curiously, the government appears to have retreated from its assertion below that these substantive constraints present nonjusticiable political questions, favoring the weaker formulations quoted above.

But the essence of its position is still the politicalquestion argument it made in the Court of International Trade. See, e.g., Defs.’ Resp. in Opp’n to Appl.

for a TRO, V.O.S. Selections, Inc. v. Trump, No. 2500066, Dkt. No. 12 at 39 (“[A]ny challenge to the legitimacy of the emergency at issue—particularly the

claim that the emergency is not ‘unusual’ or ‘extraordinary’ enough, in plaintiffs’ view—is a nonjusticiable

political question that this Court lacks jurisdiction to

consider.”). That argument was consistent with the

position the government took with respect to IEEPA

just last year, when it asserted that the statute “sets

forth no standards from which the Court could judge

the President’s selection of designation criteria [for

sanctioned individuals] or determine whether specific

criteria effectively address an unusual and extraordinary threat to the United States’ interests.” Mem. in

Supp. of Defs.’ Mot. to Dismiss at 13, Vassiliades v.

Blinken, No. 1:24-cv-01952 (D.D.C. Sept. 17, 2024),

Dkt. No. 15-1; see also id. at 10-18 (“Plaintiffs’ Claim

Presents a Political Question.”).

Regardless of whether the government acknowledges that its reviewability argument is grounded in

the political-question doctrine, statutory constraints

on the exercise of statutorily granted authority cannot

be rendered meaningless by Congress’s insufficient

precision. See, e.g., El-Shifa Pharm. Indus. Co. v.

United States, 607 F.3d 836, 855-56 (D.C. Cir. 2010)

(Kavanaugh, J., concurring) (“[P]laintiffs allege that

the Executive Branch violated congressionally en-

11

acted statutes that purportedly constrain the Executive. . . . Importantly, the Supreme Court has invoked

the political question doctrine only in cases alleging

violations of the Constitution. This is a statutory case.

The Supreme Court has never applied the political

question doctrine in a case involving alleged statutory

violations. Never.”); see also Japan Whaling Ass’n v.

Am. Cetacean Soc., 478 U.S. 221, 230 (1986) (stating

that despite the “interplay” between a statute and

“the conduct of this Nation’s foreign relations” the judiciary “cannot shirk [its] responsibility” to interpret

statutes).

Amici agree with Justice Kavanaugh that statutory constraints must be reviewable, even if substantial deference is given to the President’s fact-findings

and determinations. But if a statute’s constraints on

the grant of authority do not appear to provide judicially manageable standards—and the government

makes a compelling case that IEEPA’s constraints do

not (U.S. Br. at 41-42)—the Court should conclude

that the delegation is not meaningfully limited at all.3

And even if the Court agrees with the government

that the only substantive constraints on IEEPA’s

grant of power are not justiciable (as political questions or otherwise), that conclusion should be fatal to

the delegation analysis. Such a determination would

itself confirm that IEEPA does not contain “sufficiently definite and precise” standards “to enable Congress, the courts and the public to ascertain whether

the” President has conformed to the law. Yakus, 321

U.S. at 426; cf. United States v. Bozarov, 974 F.2d

3 And if there are no standards the courts can apply to assess

whether the President’s actions are within a statutory authorization, the President is presumably similarly unguided.

12

1037, 1042 (9th Cir. 1992) (finding that this Court’s

precedents “clearly suggest that the availability of judicial review is a factor weighing in favor of upholding

a statute against a nondelegation challenge”). Were

that not the case, Congress could transfer all policy

questions to the executive branch by using “discretionladen” language, U.S. Br. at 40, such that any exercise

of the authority conferred would be unreviewable,

thereby leapfrogging the non-delegation doctrine’s

separation of powers boundaries.4

4. The government’s halfhearted attempt to defend

IEEPA’s constitutionality fails under its own construction of the law.5 Remarkably, after its initial assertions as to the breadth of the power conferred, and

the lack of a judicially manageable standard applicable to IEEPA’s substantive constraints (U.S. Br. at 2343), the government nevertheless claims in Part II of

its brief (at 43-47) that IEEPA “easily pass[es] muster” under the non-delegation doctrine because “Congress at most committed something to the discretion

of the Executive.” U.S. Br. at 45 (cleaned up). It then

4 That is not to say that—outside of examining whether

Congress has constitutionally delegated power—courts must

review the merits of presidential exercises of discretion. Compare Trump v. Hawaii, 585 U.S. 667, 686 (2018) (declining to

scrutinize policy justification for President’s permissible method

of action) with Trump v. J. G. G., 604 U.S. 670, 672 (2025) (per

curium) (holding that even where judicial review is limited courts

can still review “questions of interpretation and constitutionality”).

5 The Court recently expressed frustration that “at every turn”

the party challenging a statutory delegation read the statutory

provision “extravagantly, the better to create a constitutional

problem.” Consumers’ Rsch., 145 S.Ct. at 2507. Here, by contrast, Amici simply repeat the government’s own assertions as to

the scope of IEEPA’s authorization.

13

contends, stunningly, that “both the courts and the

public can ascertain whether the executive has followed the law,” id. at 46 (cleaned up), because the delegated authorities are permitted only to deal with an

unusual and extraordinary threat: the very constraint

it argued just pages before was not amenable to judicial review.

The government also points to various administrative requirements to assert that Congress “gave itself,

not federal courts, primary oversight over the President’s exercise of IEEPA powers. Id. at 23. Such an

assertion is, frankly, preposterous. With respect to requirements in the National Emergencies Act (NEA),

the government itself concedes that it provides no

meaningful standards for Congress to oversee. U.S.

Br. at 14 (The NEA “placed only procedural, not substantive, limits on national-emergency declarations.”); see also Ctr. for Bio. Diversity v. Trump, 453

F. Supp. 3d 11, 32 (D.D.C. 2020) (stating that the NEA

“simply allows the President to declare an emergency

to activate special emergency powers created by Congress. Nothing else guides how the President should

make this decision”). 6

6 Because the NEA itself grants no powers and provides only a

process for a presidential declaration of a national emergency

(that serves to unlock authorities in other statutes), the declaration is at least arguably not amenable to, nor intended for,

review. The NEA can be contrasted, however, with statutory provisions that necessitate an ascertainable—however contestable—state of affairs, like IEEPA’s requirement that there actually exist an “unusual and extraordinary threat” to invoke its

authorities. 50 U.S.C. § 1701.

The government put to rest any debate about the scope of its

reading when it declined to contest Amici’s (then Plaintiffs’)

contention that the President could declare a national emergency

14

And any significant power the NEA reserved to

Congress when it was passed (initially allowing Congress to terminate declared emergencies through a

concurrent resolution, which does not require a presidential signature) was removed by amendment after

the legal effect of that process was called into doubt by

INS v. Chadha, 462 U.S. 919 (1983).7 Now, under the

NEA, a declared emergency may be terminated only

through a joint resolution—which requires either the

President’s signature or approval by a two-thirds vote

of each chamber. Pub. L. No. 99-93, 99 Stat. 405, 407,

448 (1985). Accordingly, any “congressional oversight” over NEA declarations consists of no more reserved power to police the President’s exercise of

emergency powers than any other authorizing statute.8

over a hangnail. Pls.’ Mot. for Summ. J., Princess Awesome v.

U.S. Customs & Border Protection, No. 25-00078 (Ct. Int’l Trade

May 21, 2025) Dkt. No. 14 at 42. Instead, the government contested only whether such a delegation violated the Constitution.

Defs.’ Resp. in Opp’n to Mot. for Summ. J., Princess Awesome v.

U.S. Customs & Border Protection, No. 25-00078 (Ct. Int’l Trade

May 23, 2025) Dkt. No. 16 at 40-45.

7 The Chadha Court, notably, held the one-House legislative

veto unconstitutional despite its use in matters of foreign affairs

and the war powers. To decline to similarly police the executive

would have obvious consequences for the balance of power

between the branches.

8 Nor do the NEA’s requirements that the President tell Congress about a declared national emergency, or that such a declaration terminates if the President declines to renew the declaration, U.S. Br. at 14, reflect any increased oversight responsibility for Congress. And, of course, the requirement to meet

within six months to consider terminating the emergency is

simply an exercise of each chamber’s power to set its own (internally waivable and externally unenforceable) rules. See Michael

15

The government’s position that IEEPA “expanded

[Congress’s] oversight authority beyond the NEA

baseline” by requiring the President to “consult regularly with Congress” and update Congress on the

emergency every six months, U.S. Br. at 16, similarly

fails to mitigate the constitutional defects.9 In any

event, procedural (not to mention unenforceable) statutory limits cannot save an otherwise unconstitutional delegation.10 See United States v. Rock Royal

Greene, Congressional Research Service, National Emergencies

Act: Expedited Procedures in the House and Senate, 6 (updated

Feb. 3, 2025) (“Because Article 1, Section 5, of the Constitution

provides that ‘Each House may determine the Rules of its

Proceedings,’ so too can the House and Senate choose to modify

or ignore the statutory rules of the NEA.”).

9 The government makes much of IEEPA’s “enumerated list of

exceptions” in 50 U.S.C. § 1702(b)(1)-(4), U.S. Br. at 16, but a

closer look shows they cannot bear that weight. The first and

third exceptions encompass First Amendment protected speech,

see, e.g., H.R. Conf. Rep. No. 103-482, at 239 (1994) (clarifying

that IEEPA was amended to establish “that no embargo may

prohibit or restrict directly or indirectly the import or export of

information that is protected under the First Amendment”), and

the fourth exception protects individuals’ liberty and property

rights, presumably also required by the Constitution. See U.S.

Const. amend. V. The second exception for donations is as impotent as the rest of the law because it can be vitiated by any one

of three presidential determinations (themselves presumably

unreviewable under the government’s view), including that the

donation “would seriously impair [the President’s] ability to deal

with any national emergency.” 50 U.S.C. § 1702(b)(2).

10 The government lists a string of these limits and protests

that are not, in fact, “toothless.” U.S. Br. at 32. But the only

judicial precedent it cites for that assertion concerns an

application of one of IEEPA’s limited exceptions. See Marland v.

Trump, 498 F. Supp. 3d 624, 641 (E.D. Pa. 2020) (finding plaintiff

was likely to succeed on claim that executive action contravened

16

Co-op, 307 U.S. 533, 576 (1939) (“[P]rocedural safeguards cannot validate an unconstitutional delegation;” they can only “furnish protection against an arbitrary use of properly delegated authority.”).11

If the legislative branch need not make the policy

decisions on important subjects and the courts may

not interpret the legislature’s laws or police the

bounds of our constitutional structure, then we don’t

have a unitary executive, we have a unitary government. It may be that “[j]udges lack the institutional

competence to determine when foreign affairs pose an

unusual and extraordinary threat that requires an

emergency response.” U.S. Br. at 42. But the Court

should use its institutional competency to say what

the law is and hold that in enacting IEEPA Congress

failed to exert its own institutional competencies. And

because IEEPA’s delegation is singular in its dearth

of policy guidance or ascertainable constraint, the

IEEPA’s prohibition on the regulation of personal communications). It also cites Congress’s termination of the COVID national emergency, which was signed by the President. U.S. Br. at 32

(citing Act of Apr. 10, 2023, Pub. L. No. 118-3, 137 Stat. 6).

Congress is no more empowered under the NEA or IEEPA to

restrain the use of the powers granted or to take them back than

it is under to any other law.

11 The government’s logic as to congressional oversight is also

backward. The legislative branch has the least need to parse

whether the executive is complying with a policy or constraint

set forth in IEEPA or any other law. If members of Congress

disagree with the President’s exercise of power—whether he is

acting in compliance with a statutory authority or not—they can

change the law or use Congress’s fiscal and investigative powers

to compel a change of course. It is the American people and the

courts who must be able to discern whether the executive is

acting within the scope of its legal authority. Cf. Yakus, 321 U.S.

at 427.

17

Court need confirm only that the non-delegation doctrine exists to invalidate IEEPA pursuant to it.

II. Foreign Policy Implications Arising From

The Exercise Of Delegated Powers Do Not

Change The Constitutional Analysis.

The government asserts, without further precision,

that delegation limits have “little or no force in the

foreign-affairs context.” U.S. Br. at 22.12 To the extent that statement accurately reflects the Court’s

precedents, its applicability depends on how broadly

or narrowly the “foreign affairs context” is defined.

See, e.g., Baker v. Carr, 369 U.S. 186, 211 (1962) (“[I]t

is error to suppose that every case or controversy

which touches foreign relations lies beyond judicial

cognizance.”). If the transferred power is constitutionally vested in Congress, separation of powers boundaries like the non-delegation doctrine require that policy direction and enforceable standards cabin another

branch’s exercise of that power. On the other side of

the line, if the President has independent authority to

act under the Constitution, then courts must ensure

that Congress does not impermissibly intrude on that

power, even under the mistaken belief it is constraining a delegation. Accordingly, the category of authorizations “in the foreign affairs context” that do not unconstitutionally restrict the President but delegate

12 Even outside the foreign affairs context, the Court has stated

that its delegation standard is “not demanding” and observed

that it has “over and over upheld even very broad delegations.”

Gundy v. United States, 588 U.S. 128, 146 (2019). It is accordingly uncertain whether the government believes there is any

limit on Congress’s ability to transfer the entirety of its foreign

commerce power to the President.

18

powers on which no limits can be imposed, is likely far

narrower than the government contends.

A. This Court’s non-delegation precedents

confirm the doctrine’s viability and importance in the foreign policy context.

The government mischaracterizes precedent in

contending that the Supreme Court “has thus long approved broad congressional delegations to the President to regulate international trade, including

through tariffs.” U.S. Br. at 45. To the contrary, this

Court’s precedents reflect centuries’ worth of thoughtful and nuanced grappling with the constitutional limits on delegation in the context of trade and foreign

commerce. Consequently, if the government is correct

that IEEPA is a permissible delegation, those precedents were largely wasted ink because the Constitution imposed no limits on such delegations at all.

Amici submit, however, that rather than bolstering

the government’s position (U.S. Br. at 12), the history

provides a useful contrast between permissible authorizations and IEEPA’s abdication of power.

One of the Supreme Court’s first delegation precedents, for instance, considered a challenge to a law

providing that an embargo against goods from Great

Britain or France would be revived upon a presidential proclamation that one nation had “cease[d] to violate the neutral commerce of the United States” while

the other had not. Cargo of the Brig Aurora v. United

States, 11 U.S. 382, 384 (1813). The appellant argued

that “to make the revival of a law depend upon the

President’s proclamation, is to give to that proclamation the force of a law.” Id. at 386. The Court held

that laws could be made conditionally effective and

Congress could make a law “depend upon a future

19

event, and direct that event to be made known by proclamation.” Id. at 387. In doing so, the “legislature did

not transfer any power of legislation to the President.

They only prescribed the evidence which should be admitted of a fact, upon which the law should go into effect.” Ibid.

Nearly 80 years later the Court considered a statute that required the President to suspend duty-free

treatment of specified products and impose a statutorily specified duty on those imports, if he found that a

foreign country “imposes duties or other exactions

upon . . . products of the United States, which . . . he

may deem to be reciprocally unequal and unreasonable[.]” Marshall Field & Co. v. Clark, 143 U.S. 649,

680 (1892). The Court reviewed the country’s 100year history of statutes authorizing the president to

impose an embargo (or suspend an embargo or statutory duty) upon making statutorily required findings,

but affirmed that the principle “[t]hat congress cannot

delegate legislative power to the president” was “universally recognized as vital to the integrity and

maintenance of the system of government ordained by

the constitution.” Id. at 692. Indeed, the statute under review withstood challenge because “the suspension was absolutely required when the president ascertained the existence of a particular fact,” and, accordingly, “it cannot be said that in ascertaining that

fact, and in issuing his proclamation, in obedience to

the legislative will, he exercised the function of making laws.” Id. at 693 (emphasis added). The Court

noted that “[h]alf the statutes on our books are in the

alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for execut-

20

ing them.” Id. at 694 (quoting Moers v. City of Reading, 21 Pa. 188, 202 (1853)). Of course, under no reading does IEEPA present such an if/then framework,

providing for alternative actions contingent on specific

events or fact-findings.

In J.W. Hampton, the Court considered a law requiring the President to modify import classifications

and rates of duty (capped at 50%) if, after investigation, the President determined that the statutory duties did not equalize the differences in costs of production in the United States and the principal competing

country. 276 U.S. at 401-02. The Court held that Congress “describ[ed] with clearness what its policy and

plan was and then authoriz[ed] a member of the executive branch to carry out its policy and plan and to

find the changing difference . . . necessary to conform

the duties to the standard underlying that policy and

plan.” Id. at 405. To be sure, the “President’s factfinding responsibility may have required intricate calculations, but it could be argued that Congress had

made all the relevant policy decisions.” Gundy, 588

U.S. at 163 (Gorsuch, J., dissenting).

Finally, in perhaps this Court’s most significant—

albeit only briefly addressed—delegation step in a

trade case, the Court upheld a challenge to Section

232 of the Trade Expansion Act of 1962, which provides that the President may “take such action, and

for such time, as he deems necessary to adjust the imports of” articles that the Secretary of the Treasury—

after investigation and consultation with the Secretary of Defense and others—reports are being imported in quantities or under circumstances that

threaten or impair national security. Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 550, n.1

(1976). While the Court upheld Section 232, it did so

21

having concluded that the statute “establishe[d] clear

preconditions to Presidential action” and having characterized as “far from unbounded” the President’s leeway to take actions in the event those preconditions

were met. Id. at 559. The Court also emphasized the

statute’s “articulation of standards to guide the President in making the decision whether to act” pursuant

to a “limited authorization.” Id. at 550 n.10.

The consideration the Court gave these cases merits pause because, if IEEPA’s delegation is constitutional, it will be hard to avoid the conclusion that the

Justices who labored over them were engaged in an

unnecessary and irrelevant effort to discern constitutional limits and weigh statutory distinctions. The

Court should decline the government’s implicit invitation to render their work for nought.

B. The President has no independent Article II authority to impose tariffs.

1. The government’s claim that a different delegation analysis applies “in the foreign affairs context,”

can be correct only to the extent the President has

some independent constitutional authority to act. See,

e.g., Consumers’ Rsch., 145 S.Ct. at 2516 (Kavanaugh,

J., concurring) (observing that the doctrine has been

limited “in the national security and foreign policy

realms . . . in light of the President’s constitutional responsibilities and independent Article II authority”)

(emphasis added); cf. United States v. Mazurie, 419

U.S. 544, 556-57 (1975) (Limitations on Congress’s authority to delegate its power are “less stringent in

cases where the entity exercising the delegated authority itself possesses independent authority over the

subject matter.”).

22

But there is no independent Article II authority to

impose tariffs—as part of the conduct of foreign affairs

or otherwise. Whether the tariffs are employed to

raise revenue, to regulate foreign commerce, or as a

tool to gain leverage in negotiations with foreign

states, the government does not and cannot claim that

the IEEPA tariffs should be upheld under any inherent constitutional authority.13 The tariff power is undisputedly Congress’s, not the President’s. U.S.

Const. art. I, § 8, cl. 1.

The government attempts to muddy separation-ofpowers principles by characterizing IEEPA and past

tariff-authorizing statutes as “supplement[ing]” the

President’s constitutional power over foreign affairs

and national security. U.S. Br. at 12, 22. But even if

the President’s power in those broadly articulated

realms were exclusive—and it is not, see, e.g., Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015) (“The Executive

is not free from the ordinary controls and checks of

Congress merely because foreign affairs are at issue.”)—our constitutional structure does not establish

a Legislative Branch simply to augment the powers of

a more “primary” actor established in Article II. See

U.S. Br. at 22, 35 (designating the President “the most

important person in government”).14 We would not,

13 The government does make the puzzling assertion that congressional authorizations to impose tariffs “should eliminate

doubts about the President’s authority, not create them,” U.S. Br.

at 35, suggesting that such statutes might merely confirm some

inherent tariff authority. Because the government does not

pursue that claim elsewhere, and because it is manifestly

incorrect, the Court should decline to consider it further.

14 The government’s assertions make prescient Thomas

Jefferson’s concern that, while “[t]he tyranny of the legislatures

23

for example, describe Congress’s exercise of its power

to declare war, U.S. Const. art. I, § 8, as “supplementing” the President’s constitutional responsibilities as

commander-in-chief, id. art. II, § 2. “In foreign affairs,

as in the domestic realm, the Constitution ‘enjoins

upon its branches separateness but interdependence,

autonomy but reciprocity.’” Zivotofsky, 576 U.S. at 16

(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 635 (1952) (Jackson, J., concurring)).

It may be that, as a general statement of constitutional responsibilities, “Congress and the President

enjoy concurrent constitutional authority” in the national security or foreign policy contexts. U.S. Br. at

34. But that 30,000-foot view provides no basis for allowing an impermissible delegation of specific, enumerated congressional powers (tariffs and foreign

commerce regulation) that are not constitutionally

shared, any more than it suggests that the President’s

specific power to “receive Ambassadors and other public Ministers,” U.S. Const. art. II, § 3, is concurrently

enjoyed by Congress despite its probable implications

for the regulation of foreign commerce.

Importantly, then, holding that IEEPA is an impermissible delegation would effect no reduction of the

President’s actual foreign affairs and national security powers. He could still negotiate trade deals, build

alliances, sign all manner of executive agreements,

and speak with the force of the presidency’s inherent

is the most formidable dread at present,” “[t]hat of the executive

will come in it’s turn[.]” Thomas Jefferson to James Madison, 15

March

1789,

Founders

Online,

National

Archives,

https://tinyurl.com/n96hpntr.

24

and properly delegated authority behind him.15 What

the government resists is the denial (but see n.15) of a

power that belongs to Congress and is no more concurrently shared than Congress’s power to borrow money

or establish a uniform rule of naturalization, U.S.

Const. art. I, § 8, both of which undoubtedly have foreign affairs and national security implications. Accordingly, the conclusion that Congress improperly

transferred its legislative power in IEEPA would not

intrude on the President’s constitutional authorities,

because he does not have a constitutional tariff authority. Cf. Zivotofsky, 576 U.S. at 67 (Scalia, J., dissenting) (“[T]he law of England entrusted the King

with the exclusive care of his kingdom’s foreign affairs. . . . The People of the United States had other

ideas when they organized our Government. They

considered a sound structure of balanced powers essential to the preservation of just government, and international relations formed no exception to that principle.”).

2. Nevertheless, the government’s reliance on this

Court’s facially broad statements about the President’s power in foreign affairs merits a rebuttal. As it

does in lower courts around the country nearly every

In a genuine emergency the President could presumably

defend against national security threats by exercising powers

included in IEEPA (for example, embargoes) with or without that

law’s express statutory authority. See, e.g., Prize Cases, 67 U.S.

635, 671 (1862) (upholding President Lincoln’s Civil War blockade of ports in rebel states despite the lack of concurrent congressional authorization); id. at 668 (“If a war be made by invasion of

a foreign nation, the President is not only authorized but bound

to resist force by force. He does not initiate the war, but is bound

to accept the challenge without waiting for any special legislative

authority.”).

15

25

day, the government here quotes the Court’s statement in United States v. Curtiss-Wright Export Co.,

299 U.S. 304, 320 (1936), regarding the “plenary and

exclusive power of the President as the sole organ of

the federal government in the field of international relations.” U.S. Br. at 44. The government rarely, if

ever, acknowledges the Court’s subsequent observation that Curtiss-Wright’s broad description of presidential power “was not necessary to the holding.” Zivotofsky, 576 U.S. at 21.

And recognizing that the “President does have a

unique role in communicating with foreign governments,” the Court confirmed that “whether the realm

is foreign or domestic, it is still the Legislative Branch,

not the Executive Branch, that makes the law.” Id. at

21; see also id. at 66 (Roberts, C.J., dissenting) (noting

that while Curtiss-Wright’s “expansive language . . .

certainly has attraction for members of the Executive

Branch,” “our precedents have never accepted such a

sweeping understanding of executive power”). The

Court should take the opportunity to further clarify

the limits of that statement. See id. at 19-20 (“declining to acknowledge” any “unbounded [presidential]

power” in foreign affairs put forward by the government in reliance on Curtiss-Wright).

The government’s reliance on other out-of-context

statements from this Court is similarly misplaced and

should be affirmatively rejected as statements of law.

For instance, the government quotes American Insurance Association v. Garamendi, 539 U.S. 396, 415

(2003), to assert that “Article II gives the President

the ‘lead role in foreign policy’.” U.S. Br. at 44. But

Garamendi concerned the preemption of state law interfering with foreign affairs. As to separation of powers at the national level the Court observed simply

26

that “[w]hile Congress holds express authority to regulate public and private dealings with other nations

in its war and foreign commerce powers, in foreign affairs the President has a degree of independent authority to act.” Id. at 414; see also id. at 422 n.12 (“The

Constitution expressly grants Congress, not the President, the power to regulate Commerce with foreign

Nations.”) (internal quotation marks and citation

omitted).16

Critically, while prior opinions have suggested that

“Congress may assign the President broad authority

16 The government also relies, U.S. Br. at 22, 45, on the Court’s

statement in Zemel v. Rusk that “Congress—in giving the Executive authority over matters of foreign affairs—must of necessity

paint with a brush broader than that it customarily wields in

domestic areas.” 381 U.S. 1, 17 (1965). But the Court emphasized that “[t]his does not mean that simply because a statute

deals with foreign relations, it can grant the Executive totally

unrestricted freedom of choice.” Ibid. As in other cases raising

non-delegation challenges, the Court was at pains to avoid such

a holding, construing the statute narrowly “to contain[] no such

[unrestricted] grant.” Id. at 17-18 (reaffirming prior precedent

holding that the statute “must take its content from history: it

authorizes only those passport refusals and restrictions which it

could fairly be argued were adopted by Congress in light of prior

administrative practice”) (citation omitted). Cf. Consumers’

Rsch., 145 S.Ct. at 2507 (concluding that “[p]roperly understood,”

the universal service statute expresses a “clear and limiting”

policy); Gundy, 588 U.S. at 136 (relying on a prior interpretation

of statute to import limit on executive discretion but noting that,

if the statute did “grant[] the Attorney General plenary power . .

. to change her policy for any reason and at any time,” “we would

face a nondelegation question”) (emphasis added).

Amici would welcome this Court’s decision that IEEPA does not

authorize the President’s tariffs, postponing the need to rule on

IEEPA’s constitutionality. But if the Court reaches the nondelegation question, it will find no such limiting constructions

reasonably at hand.

27

regarding the conduct of foreign affairs or other matters where he enjoys his own inherent Article II powers,” Gundy, 588 U.S. at 170-71 (Gorsuch, J., dissenting), such circumstances may be quite limited for the

simple reason that, if the President already has inherent Article II authority, even congressional efforts to

“supplement” that power—to use the government’s

term—could impermissibly intrude on or limit the

President’s exercise of that power. See, e.g., Zivotofsky, 576 U.S. at 32 (holding that the President’s

power to recognize foreign power is limited but exclusive, and concluding that “[t]o allow Congress to control the President’s communication in the context of a

formal recognition determination is to allow Congress

to exercise that exclusive power itself”); El-Shifa

Pharm., 607 F.3d at 855 (Kavanaugh, J., concurring)

(“[T]he proper separation of powers question in this

sort of statutory case is whether the statute as applied

infringes on the President’s exclusive, preclusive authority under Article II of the Constitution. . . . That

is a weighty question—and one that must be confronted directly through careful analysis of Article II,

not resolved sub silentio in favor of the Executive

through use of the political question doctrine.”).

Conversely, whatever the scope of the President’s

inherent power to act in foreign affairs—a power his

branch will no doubt zealously assert and defend—it

cannot include powers that have been explicitly vested

in another branch. See Zivotofsky, 576 U.S. at 33

(Thomas, J., concurring in part and dissenting in part)

(stating that the Constitution vests only “residual foreign affairs powers” in the President, i.e., those foreign affairs powers not explicitly given to Congress).

This Court recognized just ten years ago that “[i]n a

28

world that is ever more compressed and interdependent, it is essential the congressional role in foreign affairs be understood and respected. For it is Congress

that makes laws, and in countless ways its laws will

and should shape the Nation’s course.” Zivotofsky,

576 U.S. at 21.

* * *

If this Court concludes that IEEPA satisfies constitutional constraints, “it would be idle to pretend that

anything would be left of limitations upon the power

of the Congress to delegate its lawmaking function.”

Panama Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935).

As in 1935, the “question is not of the intrinsic importance of the particular statute before us, but of the

constitutional processes of legislation which are an essential part of our system of government.” Id.

Even under this Court’s not-demanding precedent,

“[a]t some point the responsibilities assigned [to the

President] can become so extensive and so unconstrained that Congress has in effect delegated its legislative power.” Loving v. United States, 517 U.S. 748,

777 (1996) (Scalia, J., concurring in part and concurring in judgment). If a non-delegation limit exists,

IEEPA crosses it by transferring to the President a

near-total legislative power—decisions about the “important subjects”—explicitly vested in Congress by

the People. The Court should say so.

29

CONCLUSION

For the foregoing reasons, Amici urge the Court to

affirm the judgment of the court of appeals in No. 25250.

Respectfully submitted,

M OLLY N IXON

J OSHUA R OBBINS

ASHLEY TORKELSON

LEVINE

Pacific Legal Foundation

3100 Clarendon Blvd.,

Suite 1000

Arlington, VA 22201

O LIVER J. D UNFORD

Counsel of Record

Pacific Legal Foundation

4440 PGA Blvd., Suite 307

Palm Beach Gardens, FL

33410

(916) 503-9060

odunford@pacificlegal.org

Counsel for Amici Curiae

O CTOBER 2025