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

Nos. 24-1287 and 25-250

In the

Supreme Court of the United States

LEARNING RESOURCES, INC., et al.,

Petitioners,

v.

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, et al.,

Respondents.

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, et al.,

Petitioners,

v.

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

Respondents.

On Writ of Certiorari to the United States Courts of

Appeals for the District of Columbia and Federal Circuits

BRIEF OF AMICI CURIAE GOLDWATER

INSTITUTE, DALLAS MARKET CENTER,

AND THE JOHN LOCKE FOUNDATION IN

SUPPORT OF PETITIONERS IN 24-1287

AND RESPONDENTS IN 25-250

Timothy Sandefur

Counsel of Record

Jonathan Riches

Scharf-Norton Center for

Constitutional Litigation at

the Goldwater Institute

500 East Coronado Road

Phoenix, AZ 85004

(602) 462-5000

litigation@goldwaterinstitute.org

Counsel for Amici Curiae

120653

i

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.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

IDENTITY AND INTEREST OF AMICI CURIAE . . 1

INTRODUCTION AND SUMMARY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

I.

There simply is no emergency . . . . . . . . . . . . . . . 3

A. Whether an emergency exists is not

a political question—or a matter of

Presidential ipse dixit. . . . . . . . . . . . . . . . . . 3

B. If Congress can act, it’s not an emergency . . 8

C. Trade imbalances and drug smuggling

aren’t emergencies . . . . . . . . . . . . . . . . . . . . 10

D. Actually, trade “deficits” aren’t a threat

at all . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. The power to tax versus the power to regulate . . 16

A. This case is most easily resolved by using

a clear-statement rule . . . . . . . . . . . . . . . . . 16

iii

Table of Contents

Page

B. The “greater includes the lesser”

argument doesn’t work . . . . . . . . . . . . . . . . 20

III. The “intelligible principle” test shows why

IEEPA doesn’t delegate the taxing power . . . . 23

A. Special considerations apply when the

“intelligible principle” test is used in

this context . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. IEEPA fails the “intelligible principle”

test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

iv

TABLE OF CITED AUTHORITIES

Page

Cases

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Allen v. Cnty. of Lake,

71 F. Supp.3d 1044 (N.D. Cal. 2014) . . . . . . . . . . . . . . 3

Al-Tamimi v. Adelson,

916 F.3d 1 (D.C. Cir. 2019) . . . . . . . . . . . . . . . . . . . . . 10

Anderson v. Sager,

173 F.2d 794 (8th Cir. 1949) . . . . . . . . . . . . . . . . . . . . 10

Biden v. Nebraska,

600 U.S. 477 (2023) . . . . . . . . . . . . . . . . . . . . . . 16-17, 22

BST Holdings, L.L.C. v. OSHA,

17 F.4th 604 (5th Cir. 2021), cert. denied,

142 S.Ct. 890 (2022) . . . . . . . . . . . . . . . . . . . . . . . 3, 9, 10

Chastleton Corp. v. Sinclair,

264 U.S. 543 (1924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp.,

333 U.S. 103 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

City of Decatur v. Kushmer,

253 N.E.2d 425 (Ill. 1969) . . . . . . . . . . . . . . . . . . . . . . . 4

v

Cited Authorities

Page

Consumers’ Rsch. v. FCC,

109 F.4th 743 (5th Cir., en banc 2024), rev’d,

145 S. Ct. 2482 (2025) . . . . . . . . . . . . . . . . 24, 25-26, 30

Dalton v. Specter,

511 U.S. 462 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Daniel v. Smoot,

287 F. Supp.3d 74 (D.D.C. 2018) . . . . . . . . . . . . . . . . 11

Dep’t of Revenue of Mont. v. Kurth Ranch,

511 U.S. 767 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Diamond Alternative Energy, LLC v. EPA,

145 S. Ct. 2121 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Ellis v. United States,

206 U.S. 246 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Ex parte Milligan,

71 U.S. (4 Wall.) 2 (1866) . . . . . . . . . . . . . . . . . . . . . . . . 8

Expressions Hair Design v. Schneiderman,

581 U.S. 37 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

FCC v. Consumers’ Rsch.,

145 S. Ct. 2482 (2025) . . . . . . . . . . . . . . . . . . . . . . 23, 24

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

426 U.S. 548 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

vi

Cited Authorities

Page

Flytenow, Inc. v. FAA,

808 F.3d 882 (D.C. Cir. 2015) . . . . . . . . . . . . . . . . . . . . 1

Home Bldg. & Loan Ass’n v. Blaisdell,

290 U.S. 398 (1934) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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

276 U.S. 394 (1928) . . . . . . . . . . . . . . . . . . . . . 27, 28, 29

Jaarda v. Van Ommen,

252 N.W. 485 (Mich. 1934) . . . . . . . . . . . . . . . . . . . . . . 3

K Mart Corp. v. Cartier, Inc.,

485 U.S. 176 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Kaplan v. Cent. Bank of Iran,

896 F.3d 501 (D.C. Cir. 2018) . . . . . . . . . . . . . . . . . . . 10

Kelo v. New London,

545 U.S. 469 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Kennedy v. Braidwood Mgmt., Inc.,

145 S. Ct. 2427 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Malibu W. Swimming Club v. Flournoy,

131 Cal. Rptr. 279 (Cal. App. 1976) . . . . . . . . . . . . . . . 9

vii

Cited Authorities

Page

Marshall Field Co. v. Clark,

143 U.S. 649 (1892) . . . . . . . . . . . . . . . . . . . . . 26, 27, 29

Matter of Cohen v. Starke,

269 A.D. 256 (N.Y. App. Div. 1945) . . . . . . . . . . . . . . . 3

Missouri v. Jenkins,

495 U.S. 33 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Murphy v. Town of W. New York,

32 A.2d 850 (N.J. 1943) . . . . . . . . . . . . . . . . . . . . . . . . . 3

Nat’l Cable Television Ass’n, v. United States,

415 U.S. 336 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

New Orleans Waterworks Co. v.

Louisiana Sugar-Refin. Co.,

125 U.S. 18 (1888) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

New York Central Securities Corp. v. United States,

287 U.S. 12 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

NFIB v. Sebelius,

567 U.S. 519 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Olympic Drive-In Theatre, Inc. v.

City of Pagedale,

441 S.W.2d 5 (Mo. 1969) . . . . . . . . . . . . . . . . . . . . . . . . 4

Pac. S. S. Co. v. Cackette,

8 F.2d 259 (9th Cir. 1925) . . . . . . . . . . . . . . . . . . . . . . 22

viii

Cited Authorities

Page

Regan v. Wald,

468 U.S. 222 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

S. Pac. Transp. Co. v. St. Charles Par. Police Jury,

569 F. Supp. 1174 (E.D. La. 1983) . . . . . . . . . . . . . . . . 9

Scranton v. Wheeler,

179 U.S. 141 (1900) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Ship-Money Case,

3 St. Tr. 825 (Exch. 1637) . . . . . . . . . . . . . . . . . . . . . . 17

State ex rel. Brislawn v. Meath,

147 P. 11 (Wash. 1915) . . . . . . . . . . . . . . . . . . . . . . . . 5, 7

State ex rel. Kennedy v. Reeves,

157 P.2d 721 (Wash. 1945) . . . . . . . . . . . . . . . . . . . . . . 6

State ex rel. McLeod v. Reeves,

157 P.2d 718 (Wash. 1945) . . . . . . . . . . . . . . . . . . . . . . 6

State ex rel. Robinson v. Reeves,

135 P.2d 75 (Wash. 1943) . . . . . . . . . . . . . . . . . . . . . 5, 6

State ex rel. Satterthwaite v. Hinkle,

277 P. 837 (Wash. 1929) . . . . . . . . . . . . . . . . . . . . . . 5, 10

State ex rel. Short v. Hinkle,

198 P. 535 (Wash. 1921) . . . . . . . . . . . . . . . . . . . . . . . . . 5

ix

Cited Authorities

Page

State ex rel. Tyler v. Davis,

443 S.W.2d 625 (Mo. 1969) . . . . . . . . . . . . . . . . . . . . . . 9

Tagg Bros. & Moorhead v. United States,

280 U.S. 420 (1930) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Town of Burnsville v. City of Bloomington,

128 N.W.2d 97 (Minn. 1964) . . . . . . . . . . . . . . . . . . . 4, 5

Trump v. United States,

603 U.S. 593 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Arch Trading Co.,

987 F.2d 1087 (4th Cir. 1993) . . . . . . . . . . . . . . . . . . . 30

United States v. Bass,

404 U.S. 336 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Curtiss-Wright Export Corp.,

299 U.S. 304 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Garbish,

222 U.S. 257 (1911) . . . . . . . . . . . . . . . . . . . . 4, 9, 10, 11

United States v. George S. Bush & Co.,

310 U.S. 371 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Hassanzadeh,

271 F.3d 574 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 21

x

Cited Authorities

Page

United States v. S. Pac. Co.,

209 F. 562 (8th Cir. 1913) . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Spawr Optical Rsch., Inc.,

685 F.2d 1076 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . 6-7

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

149 F.4th 1312 (Fed. Cir. 2025) . . . . . . . . . . . . . . . . . 20

Walker v. Metro Mach. Corp.,

50 F. App’x 104 (4th Cir. 2002) . . . . . . . . . . . . . . . . . . 11

Washington Suburban Sanitary Comm’n v.

Buckley,

78 A.2d 638 (Md. App. 1951) . . . . . . . . . . . . . . . . . . . . 3

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) . . . . . . . . . . . . . . . . . . . . 26

Yakus v. United States,

321 U.S. 414 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Constitutional Provisions

U.S. Const. art. I § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Wash. Const. art. II § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

xi

Cited Authorities

Page

Statutes

1 Stat. 565 (1798) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

12 Stat 326 (1861) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

26 Stat. 567 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

42 Stat. 858 (1922) . . . . . . . . . . . . . . . . . . . . . . . . 27, 28, 29

50 U.S.C. § 1701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11

50 U.S.C. § 1702(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . 29, 30

50 U.S.C. § 1702(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

50 U.S.C. § 1702(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

122 Stat. 2632 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Boston Port Act, 14 Geo. 3 c. 19 § 7 . . . . . . . . . . . . . . . . 19

Other Authorities

Abraham Lincoln: Speeches and Wr itings

1859-1865 (Fehrenbacher, ed., 1989) . . . . . . . . . . . . . . 8

Ackroyd, Rebellion (2014) . . . . . . . . . . . . . . . . . . . . . . . . 18

xii

Cited Authorities

Page

John Adams: Revolutionary Writings 1755-1775

(Wood, ed., 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Black’s Law Dictionary (4th ed. 1968) . . . . . . . . . . . . . . 8

Bressman, Schechter Poultry at the Millennium,

109 Yale L.J. 1399 (2000) . . . . . . . . . . . . . . . . . . . . . . 25

Br uhlmeier, New Essays on the Political

Thought of the Huguenots of the Refuge

(Laursen, ed., 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Byfield, An Account of the Late Revolution in

New England (1689) . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Compar ing the Costs of Generations ,

Consumer Affairs (July 3, 2025) . . . . . . . . . . . . . . . . 12

Cron i n, ed., Am er ica’s Secur ity Rol e in

a Changing World (2009) . . . . . . . . . . . . . . . . . . . . . . 15

G a r c i a & Y i , Ar e Tr a d e De f i c i t s G o o d

or Bad, and Can Tariffs Reduce Them?,

Dallas Federal Reserve (Sept. 4, 2025) . . . . . . . . . . 14

Graber, Ship-Money: The Case That Time and

Whittington Forgot, 35 Const. Comm. 47 (2020) . . 17

Griswold & Packard, How Trade Agreements

Have Enhanced the Freedom and Prosperity

of Americans, Cato Inst. (Aug. 27, 2024) . . . . . . . . . 12

xiii

Cited Authorities

Page

Henderson, Does National Security Justify Trade

Restrictions?, Hoover Inst. (Dec. 5, 2024) . . . . . . . . 16

Histories of Drug Trafficking in Twentieth-Century

Mexico (Smith & Pansters, eds., 2022) . . . . . . . . . . 11

Jefferson: Writings (Peterson, ed., 1984) . . . . . . . . . 7, 19

Klein, Does International Trade Hurt the United

States?, EconoFact (Apr. 15, 2025) . . . . . . . . . . . . . . 14

Lawson, Delegation and Original Meaning,

88 Va. L. Rev. 327 (2002) . . . . . . . . . . . . . . . . . . . . . . 26

Obstfeld, The U.S. Trade Deficit: Myths and

Realities, Brookings Inst. (Mar. 26, 2025) . . . . . . . . 10

Powell, The Right to Work for the State,

16 Colum. L. Rev. 99 (1916) . . . . . . . . . . . . . . . . . 20, 21

Real Median Family Income in the United

States, Federal Reserve Bank of St. Louis

(Sept. 9, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Scalia, A Matter of Interpretation (1997) . . . . . . . . . . . 16

Sowell, Basic Economics (5th ed. 2015) . . . . . . . 13, 14-15

The American Revolution: Writings from the

Pamphlet Debate (Wood, ed., 2015) . . . . . . . . . . . . . 18

xiv

Cited Authorities

Page

Tyler, Patrick Henry (1898) . . . . . . . . . . . . . . . . . . . . . . . 7

Vattel, The Law of Nations . . . . . . . . . . . . . . . . . . . . . . . 13

Waggoner, 50 Years of Inflation: What Things

Cost in 1972, AARP (July 7, 2022) . . . . . . . . . . . . . . 12

1

IDENTITY AND INTEREST OF AMICI CURIAE1

The Goldwater Institute is a public policy foundation

devoted to individual freedom and limited government.

Through its Scharf-Norton Center for Constitutional

Litigation, Goldwater litigates and files amicus briefs

when it or its clients’ objectives are implicated. It has

appeared in numerous courts to vindicate constitutional

restraints on the executive branch. See, e.g., Loper Bright

Enters. v. Raimondo, 603 U.S. 369 (2024); Kennedy v.

Braidwood Mgmt., Inc., 145 S. Ct. 2427 (2025); Flytenow,

Inc. v. FAA, 808 F.3d 882 (D.C. Cir. 2015). Goldwater

appeared as amicus below.

Dallas Market Center (“DMC”) is a global businessto-business trade center and the leading wholesale

marketplace in North America. DMC owns and operates a

5.5 million square foot center in Dallas, showcasing 27,000

brands of gift, home, lighting, floral/holiday, and other

products. The tariffs at issue affect every industry DMC

serves. While many companies have moved production out

of China, most are still affected in some way, by increasing

the cost of tooling, molds, or raw materials. Many

companies have cancelled or reduced autumn orders, have

laid off staff and/or frozen pay in consequence. DMC was

also amicus below.

The John Locke Foundation is a nonprofit public

policy organization which advocates market-based policies

1. Pursuant to Rule 37, counsel for amici affirm that no

counsel for any party authored this brief in whole or part, and no

person or entity, other than amici, their members, or counsel, made

any monetary contribution toward its preparation or submission.

2

to encourage competition and innovation for the benefit

of North Carolinians. To that end, it commissions polls,

publishes research, hosts events, and files briefs in cases

affecting these important values. It appeared in Diamond

Alternative Energy, LLC v. EPA, 145 S. Ct. 2121 (2025);

Expressions Hair Design v. Schneiderman, 581 U.S.

37 (2017); and Kelo v. New London, 545 U.S. 469 (2005),

among others.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Whatever powers IEEPA gives the President, there

must be an emergency before they go into effect. 50 U.S.C.

§ 1701. But the President has no power to declare an

emergency when there is none in reality. This Court has

both the authority and the duty to determine independently

whether there actually is an emergency. None exists here.

An emergency is a situation so urgent that the ordinary

lawmaking process cannot be effectuated. But “trade

deficits” and drug-smuggling are chronic conditions

Congress can address (and has addressed in the past)

through normal legislative means.

Even if there were an emergency, however, IEEPA

lacks any clear statement that it was intended to vest the

President with the power to impose taxes. Because vesting

the Executive Branch with power to tax at will would be

an extraordinary departure from constitutional norms, a

clear statement rule is proper—and IEEPA fails that test.

IEEPA also fails the “intelligible principle” test

because it contains no guidelines limiting executive power,

unlike other tariff statutes. Indeed, other tariff statutes

3

give the Executive Branch only an on/off switch, while

otherwise specifying how tariffs are to be calculated.

That IEEPA contains no such formulae, and isn’t an on/

off switch, can be best explained by the fact that it wasn’t

designed to empower the President to impose tariffs.

ARGUMENT

I.

There simply is no emergency.

The existence of an emergency, like any other

mixed question of law and fact, is subject to judicial

determination. It cannot be the case that the President,

in his sole and unreviewable discretion, can declare the

existence of an illusory emergency and thereby evade the

Constitution’s lawmaking procedures.

A.

Whether an emergency exists is not a political

question—or a matter of Presidential ipse

dixit.

The existence vel non of an emergency is a question

courts are competent to decide. They often do so, in

many contexts. 2 Just as the government cannot declare

2. In addition to those cited in the text, see, e.g., BST Holdings,

L.L.C. v. OSHA, 17 F.4th 604, 611–12 (5th Cir. 2021), cert. denied, 142

S. Ct. 890 (2022); Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S.

398, 442 (1934); Chastleton Corp. v. Sinclair, 264 U.S. 543, 547–49

(1924); Washington Suburban Sanitary Comm’n v. Buckley, 78

A.2d 638, 642 (Md. App. 1951); Matter of Cohen v. Starke, 269 A.D.

256, 262 (N.Y. App. Div. 1945); Murphy v. Town of W. New York, 32

A.2d 850, 851 (N.J. 1943); Jaarda v. Van Ommen, 252 N.W. 485, 488

(Mich. 1934). Cf. Allen v. Cnty. of Lake, 71 F. Supp.3d 1044, 1052

(N.D. Cal. 2014) (“mere declaration of an immediate threat does

not make it so.”).

4

something a nuisance when in fact it’s not a nuisance, 3 so,

too, “the mere declaration of the existence of an emergency

does not make it so but … the courts may determine this

issue.” Town of Burnsville v. City of Bloomington, 128

N.W.2d 97, 101 (Minn. 1964).

In United States v. Garbish, 222 U.S. 257 (1911), this

Court found that there was no emergency caused merely

by high water on the Mississippi River. That case involved a

statute regulating hours of labor. It included an emergency

exception, and the defendant argued that “‘the building

of levees on the Mississippi … at all times presents an

extraordinary emergency.’” Id. at 259 (emphasis added).

The Court said no. Rejecting an argument for deference,

the Court found that “no mere requirement of business

convenience or pecuniary advantage is an extraordinary

emergency”—and that no emergency actually existed. Id.

at 261. See also Ellis v. United States, 206 U.S. 246, 256 – 57

(1907) (finding no emergency); cf. United States v. S. Pac.

Co., 209 F. 562, 566 (8th Cir. 1913) (“the facts as they

appear in the record warranted the court in deciding that

an emergency, within the means of the statute, existed.”).

State courts often address this question, especially

where constitutional provisions limit how the legislature

operates, but include exceptions for emergencies.

Legislatures sometimes try to exploit these exceptions by

falsely declaring emergencies. In Town of Burnsville, for

example, a city adopted an ordinance annexing a nearby

3. See, e.g., Olympic Drive-In Theatre, Inc. v. City of

Pagedale, 441 S.W.2d 5, 9 (Mo. 1969); City of Decatur v. Kushmer,

253 N.E.2d 425, 427 (Ill. 1969); Scranton v. Wheeler, 179 U.S. 141,

157– 58 (1900).

5

town. State law imposed limits on annexation ordinances,

but allowed for “emergency” exceptions. So the city

declared an emergency, and when challenged in court, said

this declaration was conclusive. 128 N.W.2d at 101. The

court disagreed, because it was “sounder to adopt a rule

of law under which a city council cannot evade the usual

mode of [lawmaking] by simply declaring the existence

of an emergency when none in fact exists” than to accept

the notion that a city “could, whenever it saw fit, evade the

[state law].” Id. Preserving the force of statutory limits on

annexation made it “necessary that the court be permitted

to determine what the facts are and to declare ineffective

an ordinance improperly adopted.” Id.

Washington State provides many other examples.

Its constitution entitles voters to hold referenda on laws

passed by the legislature, and postpones the effective date

of most laws, to provide time for organizing referenda.4

But emergency laws go into effect immediately. Thus,

the legislature has sometimes tried to declare things

emergencies that aren’t, in order to prevent any

referendum. Washington courts have not allowed this. See,

e.g., State ex rel. Brislawn v. Meath, 147 P. 11 (Wash. 1915);

State ex rel. Short v. Hinkle, 198 P. 535 (Wash. 1921); State

ex rel. Satterthwaite v. Hinkle, 277 P. 837 (Wash. 1929).

In State ex rel. Robinson v. Reeves, 135 P.2d 75 (Wash.

1943), the legislature adopted a bill relating to public

utilities regulation, and declared it an emergency law

designed to provide interim funding for the government.

The court found the emergency declaration false, because

the act actually created “a long-range program for the

4. Wash. Const. art. II § 1(B), (C).

6

acquisition of existing electric utility properties,” instead

of providing urgent government funding. See id. at 78 –79.

Blindly deferring to emergency declarations “would

destroy the referendum and would permit the legislature

… to [evade the referendum rule] in any instance where it

is seen fit to attach to an act a declaration of emergency.”

Id. at 79.

Likewise, in State ex rel. McLeod v. Reeves, 157 P.2d

718 (Wash. 1945), and State ex rel. Kennedy v. Reeves,

157 P.2d 721 (Wash. 1945), the legislature created new

programs and proclaimed them to be emergencies, even

though no emergencies actually existed. The court found

these invalid, remarking with dismay on “the custom

of attaching emergency clauses to all sorts of bills,

many of which cannot by any stretch of the imagination

be regarded as actually emergent,” a custom which,

if indulged in, would “deliberately … infringe upon a

constitutional right.” Id. at 724.

The Government’s contention here that the existence

vel non of an emergency is “not amenable to judicial

review” is therefore plainly false. Opening Br. at 42. 5 On

5. The Government cites no authority to support its assertion.

Amicus American Center for Law and Justice cites three cases for

this assertion—Dalton v. Specter, 511 U.S. 462 (1994); Chicago &

S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948); and

United States v. George S. Bush & Co., 310 U.S. 371 (1940)—but

none had anything to do with emergency declarations. Regan v.

Wald, 468 U.S. 222 (1984), cited by amici Darrell Issa, et al., also

didn’t say courts can’t determine whether emergencies exist.

Instead, the Court deferred to the executive regarding a foreign

affairs determination that wasn’t predicated on an emergency.

See id. at 243. And United States v. Spawr Optical Rsch., Inc.,

7

the contrary, as the Washington court put it in Meath,

147 P. at 13, “judicial aversion” to reviewing declarations

of emergency is just as baseless as aversion to judicial

determinations of constitutionality. There’s “no more

reason for saying that a bill is an emergent measure,

when upon its face it is not … just because the Legislature

has said it is so” than there would be for declaring a law

constitutional just because the legislature says so. Id.

“‘[C]ourts are not bound by mere forms, nor are they to

be misled by mere pretenses. They are at liberty—indeed,

are under a solemn duty—to look at the substance of

things.’” Id. at 15 (citation omitted). Cf. Trump v. United

States, 603 U.S. 593, 631 (2024) (“[t]he Constitution deals

with substance, not shadows.” (citation omitted)).

If it were otherwise—if the executive branch has

limitless power to deem things “emergencies”—then it

would have an overwhelming incentive to do so in order to

bypass the normal lawmaking process. History is replete

with dismal examples, from Sulla to Yoon Suk Yeol. Our

constitutional tradition, of course, is to the contrary.6

685 F.2d 1076 (9th Cir. 1982), also cited by Issa amici, expressly

chose not to resolve the question. See id. at 1080 (“in the absence

of a compelling reason to address the difficult questions … we

decline to do so.”).

6. When, for example, some Virginians suggested during

the American Revolution that Governor Patrick Henry be made

dictator to deal with the British invasion, the idea was greeted with

horror and quietly dropped. Tyler, Patrick Henry 286 – 87 (1898).

“One who entered into this contest from a pure love of liberty,”

wrote Thomas Jefferson, “must stand confounded and dismayed

when he is told, that a considerable portion of [the legislators]

had meditated the surrender of them into a single hand, and, in

lieu of a limited monarch, to deliver him over to a despotic one!”

Jefferson: Writings 252 (Peterson, ed., 1984).

8

Obviously genuine emergencies occur, and Presidents

have acted swiftly to deal with them. But even then, the

existence of an emergency has never been a mere matter

of presidential dictate. When President Lincoln suspended

habeas corpus, for example, he submitted to Congress

that the outbreak of war was a “dangerous emergency”

because Congress was out of session and could not be

“called together” to deliberate in time. Abraham Lincoln:

Speeches and Writings 1859-1865 at 253 (Fehrenbacher,

ed., 1989). He then asked Congress to ratify his actions,

which it did. 12 Stat 326, ch 63, § 3 (Aug 6, 1861). That

was a true emergency, not an ipse dixit assertion seeking

end-run around the constitutional checks-and-balances

system.

This Court has recognized that an emergency must

exist in fact—it isn’t a matter of Presidential say-so. In Ex

parte Milligan, 71 U.S. (4 Wall.) 2 (1866), the Court even

said that the proposition that officials can simply declare

an emergency and thereby suspend the normal lawmaking

process was the most “pernicious” idea “ever invented

by the wit of man.” Id. at 121. It would “lead[] directly

to anarchy or despotism.” Id. Nor is such a doctrine

necessary, because the Constitution provides adequate

means to deal with both chronic and acute problems. See

id. at 120.

B. If Congress can act, it’s not an emergency.

The word “emergency” means “pressing necessity”

or “perplexing contingency.” Black’s Law Dictionary

615 (4th ed. 1968). Although emergencies are usually

unexpected, “unexpectedness” is not essential; a foreseen

condition can still be an emergency if it’s of such character

9

that action must be taken with a speed incompatible with

ordinary deliberation.

As the Missouri Supreme Court has explained, the

question “is not one of foreseeability…. Rather, the test

is whether the factual situation is such that there is

actually a crisis or emergency which requires immediate

or quick … action for the preservation of the public peace,

property, health, safety or morals.” State ex rel. Tyler v.

Davis, 443 S.W.2d 625, 631 (Mo. 1969). See also S. Pac.

Transp. Co. v. St. Charles Par. Police Jury, 569 F. Supp.

1174, 1179 – 80 (E.D. La. 1983) (defining emergency as

“a sudden occurrence or exigency, implying imminent

danger which leaves no time for deliberation, or a sudden

or unexpected necessity … which creates a temporarily

dangerous condition usually necessitating immediate or

quick action.” (emphasis added; citation omitted)).

In other words, an emergency is an acute, as opposed

to a chronic, condition. Malibu W. Swimming Club

v. Flournoy, 131 Cal. Rptr. 279, 282 (Cal. App. 1976)

(“[T]he vital element is not official prescience or its lack

but rather the acuteness of the threat.”). As this Court

put it in Garbish, “the phrase ‘continuing extraordinary

emergency’ is self-contradictory.” 222 U.S. at 261 (cleaned

up). Yes, chronic situations can become emergencies,

but any crisis—no matter how severe—in which the

authorities can convene to deliberate over a course of

action in accordance with constitutional procedures is by

definition not an emergency.

That’s why BST Holdings, supra, found that an

agency’s mask- and vaccine-mandates could not be justified

as emergency powers. “[A] purported ‘emergency’ that

10

the entire globe has now endured for nearly two years,

and which [the agency] itself spent nearly two months

responding to” was an “unavailing” argument for such

power. 17 F.4th at 611.

Most importantly, “emergency does not mean

expediency, convenience, or best interest.” Hinkle, 277 P.

at 838; accord, Garbish, 222 U.S. at 261.

Thus, contrary to the Government’s claim, the

existence of an emergency isn’t a “political question” any

more than the existence of a nuisance, Anderson v. Sager,

173 F.2d 794, 798 (8th Cir. 1949), or of genocide, Al-Tamimi

v. Adelson, 916 F.3d 1, 10 –13 (D.C. Cir. 2019), or of an act

of war. See Kaplan v. Cent. Bank of Iran, 896 F.3d 501,

514 (D.C. Cir. 2018).

C.

Trade imbalances and drug smuggling aren’t

emergencies.

Executive Order 14257 asserts that “a lack of

reciprocity in our bilateral trade relationships,” as

evidenced by “persistent annual U.S. goods trade deficits,”

is a “national emergency.” It’s not.7

The United States has run a “trade deficit” since 1976.

Obstfeld, The U.S. Trade Deficit: Myths and Realities,

Brookings Inst. (Mar. 26, 2025). 8 The Order itself refers

7. Note that the Government’s brief cites no authority to

support the Presidential assertion of an emergency except the

say-so of the President and his deputies.

8. https://www.brookings.edu/articles/the-us-trade-deficitmyths-and-realities/.

11

to “trade deficits” as “persistent.” And public deliberation

over their significance, and the costs and benefits of

restricting international trade, have been ubiquitous

in American political life since at least 1976. It’s been

the subject of multiple federal laws, from the Trade

Agreements Act of 1979 to the Trade Act of 2002. In other

words, there’s no reason the ordinary deliberative process

cannot take place. That alone proves no emergency exists.

Again, “the phrase ‘continuing extraordinary emergency’

is self-contradictory.” Garbish, 222 U.S. at 261 (cleaned

up).

The same is true of drug smuggling, which Order

14257 also cites as proving the existence of an emergency.

Illicit drugs have come across our borders for well over

a century and that’s been the topic of multiple federal

statutes since 1937. See Histories of Drug Trafficking in

Twentieth-Century Mexico 44 (Smith & Pansters, eds.,

2022).

In other words, “trade deficits” and drug-smuggling

aren’t “unusual” or “extraordinary” threats for purposes

of IEEPA. 50 U.S.C. § 1701. They are, on the contrary,

usual and ordinary. See Walker v. Metro Mach. Corp.,

50 F. App’x 104, 106 n.1 (4th Cir. 2002) (definition “usual”

as “most often seen, heard, used, etc.; common; ordinary;

customary.”); Daniel v. Smoot, 287 F. Supp.3d 74, 83

(D.D.C. 2018) (“ordinary” means “in the regular course

of events; normal; usual.” (citation omitted)). And they’re

for the legislature, not the executive, to address.

D.

Actually, trade “deficits” aren’t a threat at all.

America has run a “trade deficit” for 50 years, yet

the standard of living is far higher now than it was in the

12

1970s. The median household income in 1975 was $68,170;

it’s now about $98,680 in inflation-adjusted dollars.9 And

the cost of virtually every good has fallen, too. In 1972,

coffee cost the equivalent of $4.57 per pound in today’s

dollars, and milk the equivalent of $6.25 per gallon.10

Purchasing power has increased by more than 60% in

this half century. Comparing the Costs of Generations,

Consumer Affairs (July 3, 2025).11 Perhaps the single most

important factor in this improvement in the standard of

living has been the reduction of trade barriers. Griswold

& Packard, How Trade Agreements Have Enhanced the

Freedom and Prosperity of Americans, Cato Inst. (Aug.

27, 2024).12

The Government’s contention that “[w]ith tariffs, we

are a rich nation; without tariffs, we are a poor nation,”

Opening Br. at 2, is so contrary to the well-settled

principles of economics as understood since Wealth of

Nations was published13 —and as agreed by, in effect,

9. Real Median Family Income in the United States, Federal

Reserve Bank of St. Louis (Sept. 9, 2025), https://fred.stlouisfed.

org/series/MEFAINUSA672N.

10. Waggoner, 50 Years of Inflation: What Things Cost in

1972, AARP (July 7, 2022), https://www.aarp.org/money/personalfinance/prices-compared-to-50-years-ago/.

11. https://www.consumeraffairs.com/finance/comparingthe-costs-of-generations.html.

1 2 . ht t p s: // w w w. c a t o. or g / p u bl i c a t ion s / ho w- t r a d e agreements-have-enhanced-freedom-prosperity-americans.

13. Amicus America’s Future (at 29) quotes Vattel to argue

that nations have legal authority to restrict commerce with other

nations. That’s not in dispute. Yet Vattel went on to observe that

13

the entire economics profession today—that it fails the

rational basis test. See, generally, Br. Amicus Curiae of

Scott Lincicome, et al.

The very concept of “trade deficit” is economically

senseless. As Thomas Sowell has written, “[i]f the goods

and services available to the American people are greater

as a result of international trade, then Americans are

wealthier, not poorer, regardless of whether there is

a ‘deficit’ or a ‘surplus’ in the international balance of

trade.” Basic Economics 477 (5th ed. 2015). Freer trade

makes nations more prosperous because it enables them

to specialize according to comparative advantage. That’s

why, contrary to the claims of critics, “the number of

American jobs increased after [NAFTA was adopted].”

Id. at 475 (emphasis original).

Actually, “trade deficits” are proof of “strong domestic

investment or fiscal expansion, financed by global savings

at a relatively low borrowing cost…. [They are] explained

by deeper structural forces [such as] … strong relative

productivity growth, global savings imbalances and the

U.S. dollar’s role as the dominant reserve currency.”

blocking international trade is an extremely grave step—indeed,

he characterized it as a “refus[al] to comply with the general

duties of humanity,” because he saw trade as morally obligatory.

“Men are obliged mutually to assist each other as much as possible

… [so] it became a duty to sell to each other at a fair price what

the possessor himself has no occasion for and what is necessary

to others.” The Law of Nations bk. I §§ 88, 94. In any event,

Vattel wrote two decades before Smith earned immortality by

refuting the mercantilist fallacies under which Vattel labored.

See Bruhlmeier, New Essays on the Political Thought of the

Huguenots of the Refuge 69 (Laursen, ed., 1995).

14

Garcia & Yi, Are Trade Deficits Good or Bad, and Can

Tariffs Reduce Them?, Dallas Federal Reserve (Sept. 4,

2025).14

More simply, a “trade deficit” occurs because

Americans are wealthy enough to buy products from

overseas manufacturers rather than being forced to

make those products themselves. Americans could cease

all international trade tomorrow, and force themselves

to manufacture all of their own goods. That would make

them poorer, not richer.

Worse still, the calculations respecting the alleged

“trade deficit” only take into consideration the buying

and selling of products and ignore the buying and selling

of services. Yet as our standard of living has risen, and

Americans have emerged as the leaders of technological

innovation and the ideas industry, we have tended to trade

our services for goods from abroad. This isn’t a “deficit”

of any sort, but a testament to the advancement of the

American economy. See Klein, Does International Trade

Hurt the United States?, EconoFact (Apr. 15, 2025).15

Thus, the word “deficit” is inapposite. Buyers get

what they pay for and pay for what they get, so there’s no

actual deficit. Instead, the word is used as a dysphemism:

an exploitation of scary-sounding language to make

something seem threatening when it isn’t. As Sowell

14 . ht t p s: // w w w.d a l l a sfe d.org / r e se a r ch /

economics/2025/0904.

15. https://econofact.org/does-international-trade-hurtthe-united-states.

15

observes, “[s]lippery words can make bad news look like

good news and vice versa.” Supra at 477.

It’s often said that “trade deficits” represent a

national security danger because if manufacturing

occurs outside the United States, then in the event of

international conflict—if, say, an overseas factory is

seized by a hostile government—Americans would lack

the wherewithal to shift supply lines and manufacture

needed items domestically. But this, if true, is the fault

of domestic barriers to entry. If it’s cheaper to buy, say,

microchips from Taiwan than the United States, industry

will do so, and if the People’s Republic were then to

invade Taiwan, there’s nothing to prevent industry from

shifting operations to the United States except our own

restrictions on the economy. The solution, then, is to

reduce our domestic regulatory burden—not to restrict

Americans’ freedom to trade.

Blocking international trade in order to protect

domestic manufacturers against legitimate competition

actually undermines American readiness. Protectionism

“endangers U.S. domestic and global security interests,”

not only because it “sets a poor example for [other]

governments,” but because it “impose[s] costly procurement

requirements on the U.S. Armed Forces and preclude[s]

purchase of the best products, technologies, and services.”

Cronin, ed., America’s Security Role in a Changing

World 31 (2009). See also Griswold & Freytag, supra

at 10 (“a trade surplus can actually betray weakness in

an economy to the extent that it shows an inability to

import crucial goods and commodities.”). Meanwhile, our

domestic manufacturing sector, grown flabby by being

shielded from market competition, becomes less fit for any

16

confrontation against foreign enemies. See Henderson,

Does National Security Justify Trade Restrictions?,

Hoover Inst. (Dec. 5, 2024).16

II. The power to tax versus the power to regulate.

A.

This case is most easily resolved by using a

clear-statement rule.

The government says tariffs can qualify as a kind of

regulation. Opening Br. at 20. Maybe, but that’s not the

question. The question is whether Congress, in passing

IEEPA, gave the President a limitless power to declare

emergencies and thereby impose taxes on Americans in

whatever amount he decides for as long as he wants. Given

the profound constitutional implications of answering yes,

this Court should at least require a clear statement to that

effect in the statute.

“In traditionally sensitive areas … the requirement

of clear statement assures that the legislature has in

fact faced, and intended to bring into issue, the critical

matters involved in the judicial decision.” United States v.

Bass, 404 U.S. 336, 349 (1971). Clear statement rules are

appropriate where one possible interpretation of a statute

would cause such an “extraordinary” departure from

constitutional norms that “one would normally expect it

to be explicitly decreed rather than offhandedly implied.”

Scalia, A Matter of Interpretation 29 (1997).17

16. https://www.hoover.org/research/does-national-securityjustify-trade-restrictions.

17. Justice Barrett noted the difference between a clear

statement rule and the major questions doctrine in Biden v.

17

This Court should decline to interpret IEEPA as

granting the President a power so constitutionally

offensive as the power to tax at will, absent a clear

statement to that effect. The framers would have reacted

with horror at the idea of taxation imposed unilaterally

by Presidential dictate. It runs contrary to everything

they held dear.

Consider the background against which they worked:

the imposition of taxes by the Stuart kings without

Parliament’s input was a leading cause of the English Civil

War and the Glorious Revolution. John Hampden—the

MP who refused to pay “ship money” on the grounds that

a tax imposed by the king rather than Parliament was

invalid—was put on trial in the famous Ship-Money Case,

3 St. Tr. 825 (Exch. 1637), and although he lost, became

a hero to America’s founders. See Graber, Ship-Money:

The Case That Time and Whittington Forgot, 35 Const.

Comm. 47 (2020).

The Stuarts persisted in imposing unilateral taxes,

leading to such unrest that Parliament eventually deposed

James II in 1689 and replaced him with William and Mary,

on the condition that they agree to a Bill of Rights that

Nebraska, 600 U.S. 477, 507 (2023) (Barrett, J., concurring).

The Government’s argument that the latter doesn’t apply to the

foreign policy realm, Opening Br. at 34 – 35, begs the question. That

argument rests on the assumption that imposing tariffs is part of

the President’s inherent Article II power. But the President does

not “enjoy concurrent constitutional authority” regarding tariffs.

Id. at 34. On the contrary, Congress and Congress alone has power

“to lay and collect taxes, duties, imposts, and excises,” as well as

to “regulate commerce with foreign nations,” U.S. Const. art. I

§ 8, so there’s no “presumption” to “flip[].” Opening Br. at 34.

18

reiterated that the taxing power belongs to Parliament,

not the king. Ackroyd, Rebellion 168 – 69, 372 (2014). Less

well known is that unilateral taxes were also imposed on

the American colonies during this period, when Charles II

dispatched the dictator Edmond Andros to rule over New

Hampshire, Massachusetts, Rhode Island, Connecticut,

New York, and New Jersey. He imposed quit-rents without

legislative input—and in 1689, angry colonists overthrew

him for “rais[ing] taxes as he pleased” without “any

liberty for an assembly.” Byfield, An Account of the Late

Revolution in New England 7–19 (1689).

A mer ica’s founders knew this histor y. W hen

Parliament began taxing them, they protested that this

violated the basic principle that taxes are a matter for

the people’s elected representatives. “We have always

understood it to be a grand and fundamental principle

of the [British] Constitution, that no freeman should be

subjected to any tax, to which he has not given his own

consent, in person or by proxy,” wrote John Adams. John

Adams: Revolutionary Writings 1755-1775 at 126 (Wood,

ed., 2011). John Dickinson agreed:

No free people ever existed, or can ever exist,

without keeping, to use a common, but strong

expression, “the purse strings” in their own

hands. Where this is the case, they have a

constitutional check upon the administration….

But where such a power is not lodged in the

people, oppression proceeds uncontrolled in

its career.

The American Revolution: Writings from the Pamphlet

Debate 456 (Wood, ed., 2015) (emphasis eliminated).

19

As for delegation, even Parliament seems never to have

contemplated empowering the king to unilaterally impose

taxes. But in early 1774, when Parliament punished Boston

for the Tea Party by closing its harbor, it did delegate to

the king the authority to determine whether and when

to reopen parts of the harbor. See Boston Port Act, 14

Geo. 3 c. 19 § 7. This struck colonists as an outrageous

violation of the separation of powers. It had been “thrown

in for no other purpose than that of setting a precedent

for investing his majesty with legislative powers,” wrote

Thomas Jefferson. “If the pulse of his people shall beat

calmly under this experiment, another and another will

be tried, till the measure of despotism be filled up.” A

Summary View of the Rights of British America (1774),

reprinted in Jefferson: Writings, supra at 113.

For these reasons, the Constitution’s authors gave the

taxing power exclusively to Congress—indeed, primarily

to the House of Representatives, which was considered

closest to the people. The idea of this power being held

by one single individual was anathema. This Court was

therefore on solid historical ground when it said that

“[t]axation is a legislative function, and Congress … is

the sole organ for levying taxes…. It would be … a sharp

break with our traditions to conclude that Congress had

bestowed on [the executive branch] the taxing power.”

Nat’l Cable Television Ass’n, v. United States, 415 U.S.

336, 340 – 41 (1974).

Letting the President impose taxes of whatever

amount whenever he wants for as long as he wants is

such a sharp break with constitutional practice that it

well warrants a clear-statement requirement. No clear

statement exists here. As the court below noted, every

20

other law giving the President power to impose tariffs

uses that word, but IEEPA doesn’t—nor does it contain

any guidelines or limitations regarding how such a power

is to be used. V.O.S. Selections, Inc. v. Trump, 149 F.4th

1312, 1332 (Fed. Cir. 2025). That’s not a clear statement.

B. The “greater includes the lesser” argument

doesn’t work.

One potential pitfall in examining this question is the

“greater-includes-the-lesser” argument: supporters of

the tariffs sometimes contend that because the President

can impose an embargo on a country for national security

purposes, he must be able to take the lesser step of

imposing tariffs. Cf. Opening Br. at 29. This reasoning

is fallacious.

The “greater-includes-the-lesser” rule only applies

where the purported “lesser” is a subset of the “greater.”

If all As are also Bs, then A is a subset of B. But if some

As are not Bs, then A is not a subset of B, and lesser/

greater mischaracterizes their relationship entirely. In

other words, the “greater-includes-the-lesser” rule is

quantitative in nature; if there’s a qualitative distinction

between As and Bs, the approach falls apart, leading to

faulty conclusions.

In The Right to Work for the State, 16 Colum. L. Rev.

99 (1916), Thomas Reid Powell explained this using an apt

example. Consider the purported syllogism:

Major premise: There’s a class of businesses

A which the state can wholly exclude from

operation.

21

Minor premise: The X corporation is an A

business.

Conclusion: Therefore, the state can impose

any burden it chooses on the X corporation.

See id. at 110. As Powell noted, this commits “the fallacy

of four terms,” because the conclusion contains a predicate

differing from that in the major premise. Id. at 111.

“Logically a thing which may be absolutely excluded is

not the same as a thing which may be subjected to burdens

of a different kind, even though such burdens would be

regarded by all as less onerous than the burden of absolute

exclusion.” Id. (emphasis added).

Tariffs are not a subset of embargoes. An embargo

is “a governmentally imposed quantitative restriction—of

zero—on the importation of merchandise.” K Mart Corp.

v. Cartier, Inc., 485 U.S. 176, 185 (1988). It blocks people

from engaging in transactions.18 It doesn’t raise revenue,

except by accident; its goal is to bar trade. Tariffs, on

the other hand, are taxes, which don’t forbid trade, but

18. Thus the statute in United States v. Curtiss-Wright Export

Corp., 299 U.S. 304 (1936), empowered the President to issue a

“proclamation [that] … it shall be unlawful to sell, except under

such limitations and exceptions as the President prescribes, any

arms or munitions of war” to combatants in the Spanish Civil War.

Id. at 312. Could Roosevelt instead have required arms dealers

to pay a $1 tax for every gun sold? Such an interpretation would

have been absurd. Embargoes traditionally include an “exceptions”

clause, but this is to permit limited licensing exceptions—not as

a back door allowing taxation. Cf. United States v. Hassanzadeh,

271 F.3d 574, 582 (4th Cir. 2001) (“The need for such a license …

demonstrate[s] the breadth of the core ban.”).

22

increase costs to buyers and generate revenue for the

government. Pac. S. S. Co. v. Cackette, 8 F.2d 259, 261

(9th Cir. 1925) (“a system of rates and charges.”).

Tariffs create a different set of incentives than

embargoes do, both for consumers and the government.

Consumers can still buy, although their cost/benefit

analysis is changed by the rate, and the government

receives income, which it must decide whether and how to

spend, and it must calculate the political and social costs

of raising or lowering the amount. These calculations are,

of course, the kind of “basic and consequential tradeoffs”

involved in any tax policy—tradeoffs our constitutional

system expects Congress, not the President, to sort out.

Biden, 600 U.S. at 506 (citation omitted). In other words,

taxes on imports raise a slew of distinct legal and policy

concerns that qualitatively differentiate tariffs from

embargoes.

The Government’s assertion that IEEPA gives it the

gamut of power “from ‘compel’ to ‘prohibit’ and everything

in between,” therefore commits a fallacy. Opening Br. at

29. Not “everything” falls “between” these two poles. The

President could not, for example, rely on the embargo

power to order all importers to emblazon his picture on all

their packaging, or forbid them from selling to members of

a particular minority group, or allow imports in exchange

for a direct deposit into his personal checking account.

The reason is that such things would not be “lesser” to

the category of embargoes. They wouldn’t be “between”

“compelling” and “forbidding.” Import taxes are also not

between those poles.19

19. Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S.

548 (1976), on which the Government relies, is not to the contrary.

23

In short, it’s a non sequitur to say that because the

President can impose embargoes as part of his foreign

policy power, he can also implement revenue-generating

tariffs on every country in the world under that same

power. An embargo can be analogized to an arrest of

a suspect by a police officer—whereas a tariff is more

analogous to the establishment of a criminal statute

which the police are expected to enforce throughout the

community. Even if the former is an executive power, the

latter is qualitatively legislative.

III. The “intelligible principle” test shows why IEEPA

doesn’t delegate the taxing power.

A.

Special considerations apply when the

“intelligible principle” test is used in this

context.

Courts have long accepted legislative delegations

of rulemaking power to agencies (within limits), but

the taxing power differs from rulemaking in ways that

make delegation of this power uniquely dangerous and

warrants an especially careful attention to constitutional

principles. 20

There, the statute satisfied the clear-statement requirement; it

explicitly empowered the President to “adjust the imports of (an)

article and its derivatives,” which “clearly” included the power

to impose fees. Id. at 561. No such language appears in IEEPA,

which is about banning, not adjusting. That statute also included

“standards to guide the President in making the decision whether

to act,” which isn’t true of IEEPA. Id. at 559 n.10. Algonquin did

not rest on a “greater includes the lesser” argument, but on the

statute’s plain language.

20. FCC v. Consumers’ Rsch., 145 S. Ct. 2482, 2498 (2025),

held that Congress need not set a “numeric cap or tax rate”

24

First, rules differ from taxes. Cf. NFIB v. Sebelius,

567 U.S. 519, 546 –74 (2012). Rules establish standards for

behavior that’s allowed or forbidden. Taxes, by contrast,

impose revenue-raising charges on permissible behavior.

“[T]axes are … usually motivated by revenue-raising,

rather than punitive, purposes.” Dep’t of Revenue of Mont.

v. Kurth Ranch, 511 U.S. 767, 779 – 80 (1994).

T hat ma ke s t a xe s qu i nt e s sent i a l ly m a t t ers

for deliberation and compromise—i.e., legislative

determination—because they involve complicated costbenefit analyses and tradeoffs—which isn’t necessarily

true of rules. In Missouri v. Jenkins, 495 U.S. 33 (1990),

the Court observed that it’s inappropriate for courts

to impose taxes because “[t]he very complexity of the

problems of financing … suggests that there will be more

than one constitutionally permissible method of solving

them, and that ... the legislature’s efforts to tackle the

problems should be entitled to respect.” Id. at 52 (cleaned

up). For the same reasons, taxation is a quintessentially

legislative matter, depending on input from multiple

stakeholders—and unsuited to unilateral executive action.

when empowering agencies to raise revenue. But it emphasized

the statutory limits on the agency’s revenue-raising power. The

agency could only charge “to support the universal-service

programs Congress has told it to implement.” Id. at 2501. IEEPA,

by contrast, contains no instructions and creates no program

that could limit the revenue-gathering either qualitatively or

quantitatively. Consumers’ Rsch. acknowledged that a law

lacking such standards—for example, one that “authorize[s] the

President to approve ‘codes of fair competition’ … ‘throughout

the country,’ yet impose[s] ‘few restrictions’ and ‘set[s] up no

standards’ aside from a ‘statement of the general aims’”—would

be unconstitutional. Id. at 2503 (quoting A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495, 521– 22 (1935)). This case

is much more like Shechter Poultry than like Consumers’ Rsch.

25

Second, although delegation of rulemaking authority

to the executive has long been accepted, that’s because it’s

subject to limits—limits that don’t port over easily into

the tax context. The “intelligible principle” rule holds that

Congressional authorization of rulemaking authority isn’t

the giving away of legislative power as long as Congress

limits it by prescribing guidelines to cabin the executive

branch in carrying out that power. “Intelligible principles”

can be broad—they’ve included such terms as “just and

reasonable,” Tagg Bros. & Moorhead v. United States, 280

U.S. 420, 431 (1930), or “in the public interest,” New York

Central Securities Corp. v. United States, 287 U.S. 12, 21

(1932)—although other legal doctrines such as the major

questions doctrine also help ensure that agency actions

are within the scope of statutorily delegated authority.

Bressman, Schechter Poultry at the Millennium, 109

Yale L.J. 1399, 1408 – 09 (2000). These limits prevent the

wholesale giving away of legislative power to the executive.

But it’s unimaginable that Congress could, say,

repeal all taxes tomorrow and replace them with a singlesentence statute allowing the President to levy whatever

taxes he believes are “just and reasonable” or “in the

public interest.” Tagg Bros., 280 U.S. at 431; N.Y. Cent.

Sec. Corp., 287 U.S. at 21.

Simply put, a principle that’s intelligible in one context

might not be intelligible in another context. One purpose

of the test is to make it possible “in a proper proceeding to

ascertain whether the will of Congress has been obeyed.”

Yakus v. United States, 321 U.S. 414, 426 (1944). But if

Congress were to give the President power to tax “for the

good of the public,” it would be impossible to make that

determination. Cf. Consumers’ Rsch. v. FCC, 109 F.4th 743,

26

761 (5th Cir., en banc 2024), rev’d, 145 S. Ct. 2482 (2025)

(“it remains a mystery how we are supposed to ‘ascertain

whether the will of Congress has been obeyed.’”)

It would be equally impossible to determine whether

a delegation of the taxing power to the President would

be a “major question,” as opposed to a minor one. Would

a three-penny tax on tea, imposed by the President

without Congressional involvement, be one of “those

important subjects, which must be entirely regulated by

the legislature itself,” or merely a “fill[ing] up [of] the

details”? Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43

(1825).

Presumably, all taxes are “major questions.”

True, Congress sometimes adopts statutes that give

the executive power to apply or not apply tax laws in

specific instances, see, e.g., New Orleans Waterworks Co.

v. Louisiana Sugar-Refin. Co., 125 U.S. 18, 31 (1888), or

to exempt specific items from taxation, Marshall Field

Co. v. Clark, 143 U.S. 649 (1892), but in so doing, it hasn’t

purported to give the President discretion to decide what

taxes to impose or how much. Rather, these instances

involve Congress giving the President an “on/off switch,”

or a “trigger for effectiveness,” 21 which is not what’s

happening here.

Marshall Field involved a statute22 imposing tariffs

on a variety of goods, which then exempted a list of

21. Lawson, Delegation and Original Meaning, 88 Va. L.

Rev. 327, 364 (2002).

22. 26 Stat. 567 (1890).

27

specified goods, and then let the President suspend that

exemption if, in his judgment, another country set its

import restrictions in ways that were “unreasonable.” Id.

at 680. The Court upheld this because Congress had not

delegated any power regarding “the expediency or the

just operation” of the taxes. Id. at 693. Instead, the statute

established a formula for the President to follow when

turning the on/off switch; he “had no discretion … except

in respect to the duration of the suspension,” the Court

said. “[T]he suspension was absolutely required when

the president ascertained the existence of a particular

fact.” Id.

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

276 U.S. 394 (1928), the Court upheld the constitutionality

of a statute23 allowing the President to decide when to

impose certain tariffs. That, too, was not giving away the

taxing power; instead, Congress specified the terms of the

tax, but then “[felt] itself unable conveniently to determine

exactly when its exercise of the legislative power should

become effective, because [it was] dependent on future

conditions.” Id. at 407. So it let the White House determine

when the triggering event had occurred. In other words,

it, too, was an “on/off switch.” 24 The act in question

did not in any real sense invest the President

with the power of legislation, because nothing

23. 42 Stat. 858 (1922).

24. Even the First Non-Intercourse Act dur ing the

Washington Administration, took this form, prohibiting trade,

but then empowering the President to turn off that prohibition

on certain conditions—not to impose a schedule of taxes. 1 Stat.

565, 566 (1798).

28

involving the expediency or just operation of

such legislation was left to the determination

of the President…. What the President was

required to do was merely in execution of the

act of Congress…. He was the mere agent of

the lawmaking department to ascertain and

declare the event upon which its expressed will

was to take effect.

Id. at 410–11.

Exactly the opposite is true here. IEEPA contains

none of the detailed features of the laws at issue in Field

or J.W. Hampton. Instead, the Executive Branch has

asserted power to create tariffs that did not previously

exist, to impose them on items that may or may not have

been subject to tariffs, and to levy them in amounts, or

pursuant to formulae, established entirely by the White

House. That’s not an “on/off switch.” That’s tax-creation.

B. IEEPA fails the “intelligible principle” test.

Compare IEEPA with the statute in J.W. Hampton.

That law set forth a “dutiable list,” declaring that “there

shall be levied, collected, and paid” certain duties on a

variety of imports. 42 Stat. at 858. The list was highly

detailed, including everything from oxide of antinomy,

taxed at 2 cents per pound, id. at 859, to “earthenware

and crockery ware composed of a nonvitrified absorbent

body,” taxed at 45 percent ad valorum, id. at 870. The

same is true of the statute in Field, which was even more

detailed. It specified that penknives and pocket-knives

were taxed at 50 cents per dozen, leaf tobacco suitable

for cigar-wrappers at $2 per pound, and that wools of the

29

third class were taxed at thirteen cents per pound. 26

Stat. at 585, 595.

IEEPA and the other statutes cited in the Executive

Orders, by contrast, contain no list of dutiable items,

valuations, or other directives regarding amounts to be

charged. 25 And where the statutes in J.W. Hampton and

Field set out specific rates on specific items, leaving it to

the President to turn an on/off switch, neither IEEPA

nor any of the other statutes contains any switch at all.

IEEPA lets the President “regulate,” 50 U.S.C.

§ 1702(a)(1)(A), but it sets forth no formulae, rates, or

amounts of taxation; specifies no items to be taxed; is silent

respecting countries of origin; and provides no standard

by which the President can “ascertain[] the existence of

[any] particular fact”—all factors Field found decisive. 143

U.S. at 693. Instead, IEEPA is a broad grant of emergency

power to regulate for purposes of temporary national

emergencies. It contains no indicia that it was designed

as a tax or tariff statute.

Whatever intelligible principles IEEPA contains

were intended to serve the statute’s actual purpose of

authorizing embargo and confiscation powers in case

25. IEEPA did once refer to the Harmonized Tariff Schedule

of the United States (HTSUS), when Congress amended IEEPA

to ban the importation of gemstones from Burma—while allowing

the President to end that ban in certain circumstances. 122 Stat.

2632. That law (now lapsed) defined the terms “rubies” and

“jadeite” by reference to HTSUS. See id. at 2639. This shows

that Congress knows how to incorporate the tariff schedule into

a statute empowering the President to impose sanctions when it

wants to. It hasn’t done so here.

30

of actual emergency, not the unanticipated purpose of

international trade regulation for which it is now being

utilized. That’s why United States v. Arch Trading Co.,

987 F.2d 1087, 1093 (4th Cir. 1993), is unhelpful. It said

IEEPA satisfied the intelligible principle test because it

“defines the specific circumstances in which the President

may act and to what extent,” and in particular because “[t]

he powers granted to the President are explicitly defined

and circumscribed.” Id. But Arch Trading involved an

order forbidding travel to Iraq and the sale of goods

there during the First Gulf War, which was plainly the

purpose for which IEEPA was designed. That bears

little resemblance to this case, where the statute is being

twisted into a license for central planning of the economy.

So, while Arch Trading found the “explicit[]” limits

on Presidential power in IEEPA (or, in the synonymous

phrase from Consumers’ Rsch., IEEPA’s “qualitative

limits,” 145 S. Ct. at 2501) adequate, those limits don’t bear

on taxation. They aren’t “intelligible” in that context. Tax

laws usually provide formulae for calculating levies. None

is present in IEEPA—which contains neither quantitative

nor “qualitative” limits. Id. And what limits it does contain

can’t be applied to taxes.

For example, Section 1702(a)(1)(A) lets the President

“investigate, regulate, or prohibit.” But these verbs don’t

fit with “tax.” Tax and tariff statutes virtually always use

verbs such as “levy,” “collect,” or “assess,” instead—and

these don’t appear in IEEPA. Likewise, Section 1702(a)(3)

says all persons are immune from liability “with respect

to anything done or omitted in good faith in connection

with the administration of … any regulation, instruction,

or direction issued under this chapter”—which is hard

31

to square with taxation, where liability doesn’t turn

on questions of good faith. And Section 1702(b)(3) bars

the President from “regulat[ing] or prohibit[ing] … the

importation … of any information,” when information

can’t be taxed.

The bottom line is that applying the intelligible

principle test helps show why IEEPA doesn’t delegate

taxing power to begin with—and, if it does, it fails that

test.

CONCLUSION

The decision should be affirmed.

Respectfully submitted,

Timothy Sandefur

Counsel of Record

Jonathan Riches

Scharf-Norton Center for

Constitutional Litigation at

the Goldwater Institute

500 East Coronado Road

Phoenix, AZ 85004

(602) 462-5000

litigation@goldwaterinstitute.org

Counsel for Amici Curiae