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

Nos. 24-1287 & 25-250

In the Supreme Court of the United States

__________

LEARNING RESOURCES, ET AL.,

v.

Petitioners,

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL.,

Respondents.

__________

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL.,

Petitioners,

v.

V.O.S. SELECTIONS, INC., ET AL.,

Respondents.

__________

On Writ of Certiorari Before Judgment to the

United States Court of Appeals for the District of

Columbia Circuit

On Writ of Certiorari to the

United States Court of Appeals for the Federal Circuit

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS IN

24-1287 AND THE RESPONDENTS IN 25-250

__________

(Counsel listed on next page)

Thomas A. Berry

Counsel of Record

Brent Skorup

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(443) 254-6330

tberry@cato.org

October 24, 2025

i

QUESTIONS PRESENTED

Amicus will address the following question:

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.

ii

TABLE OF CONTENTS

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

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

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

INTRODUCTION AND SUMMARY OF THE

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

ARGUMENT ................................................................ 5

I.

HISTORICAL PRACTICE

CONFIRMS THAT TARIFFSETTING IS A NONDELEGABLE

LEGISLATIVE POWER. ................................ 5

II. IEEPA DOES NOT AUTHORIZE

THE PRESIDENT TO MODIFY

TARIFF RATES. ............................................. 9

A. IEEPA Provides No Textual

Support for Tariff Authority. .................. 9

B. IEEPA’s Origins Confirm That

Tariff Authority Remains with

Congress. ................................................ 12

III. THE EXECUTIVE’S POWER TO

LEVY DUTIES IN WAR IS NO

PRECEDENT FOR TARIFFS IN

PEACE. .......................................................... 16

CONCLUSION .......................................................... 21

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Alcan Sales v. United States, 534 F.2d 920

(Cust. & Pat. App. 1976) ........................................ 15

Cross v. Harrison, 57 U.S. 164 (1853) ....................... 17

Fleming v. Page, 50 U.S. 603 (1850) ......................... 17

Hamilton v. Dillin, 88 U.S. 73 (1874) ....................... 18

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

276 U.S. 394 (1922) .............................................. 8, 9

Lincoln v. United States, 197 U.S. 419 (1905) .......... 18

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

369 (2024) ....................................................... 3, 9, 11

Marsh v. Chambers, 463 U.S. 783 (1983) ............... 5, 8

Stoehr v. Wallace, 255 U.S. 239 (1921) ............... 12, 19

The Pocket Veto Case, 279 U.S. 655 (1929) ................. 8

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

560 (Ct. Cust. & Pat. App. 1975) ........................... 15

Util. Air Regul. Grp. v. EPA, 573 U.S. 302

(2014) ...................................................................... 11

West Virginia v. EPA, 597 U.S. 697 (2022) ........... 4, 10

Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952) ......................................................... 7

Statutes

19 U.S.C. § 1821(a) .................................................... 10

19 U.S.C. § 2132......................................................... 15

19 U.S.C. § 2411(c)(1)(B) ............................................. 9

iv

50 U.S.C. § 1701(a) ...................................................... 3

50 U.S.C. § 1701(b) ...................................................... 2

50 U.S.C. § 1702......................................................... 10

50 U.S.C. § 1702(a)(1)(B) ......................................... 2, 3

50 U.S.C. § 4305(b)(3) ................................................ 13

Act of Dec. 18, 1941, 55 Stat. 839.............................. 13

Act of July 13, 1861, 12 Stat. 255 ............................... 6

Act of July 4, 1789, 1 Stat. 24 ..................................... 5

Act of March 9, 1933, 48 Stat. 1 ................................ 13

First War Powers Act of 1941, Pub. L. No.

77-354, § 301, 55 Stat. 838..................................... 19

Oct. 6, 1917, ch. 106, § 5, 40 Stat. 415 ...................... 13

Revenue Act of 1913, 30 Stat. 151 .............................. 6

Tariff Act of 1816, 3 Stat. 310 ..................................... 6

Tariff Act of 1832, 4 Stat. 583 ..................................... 6

Tariff Act of 1861, 12 Stat. 178 ................................... 6

Tariff Act of 1883, 22 Stat. 488 ................................... 7

The International Emergency Economic

Powers Act of 1977, 50 U.S.C. § 1701................ 2, 13

Other Authorities

Blocking Property of Certain Persons

Contributing to the Conflict in Cote

d’Ivoire, Exec. Order 13396 (Feb. 7, 2006) ............ 10

FEDERALIST NO. 23 (Alexander Hamilton)

(Royal Classics ed. 2020) ......................................... 7

v

Forbidding the Hoarding of Gold Coin, Gold

Bullion and Gold Certificates, Exec. Order

No. 6102 (1933) ...................................................... 13

Governing Certain Capital Transfers Abroad,

Exec. Order 11387 (1968) ...................................... 14

Imposition of Supplemental Duty for Balance

of Payments Purposes, Proclamation 4074

(Aug. 15, 1971) ....................................................... 14

Mary M.C. Bowman, Presidential Emergency

Powers related to International Economic

Transactions, 11 VAND. L. REV. 515 (1978) ........... 15

Michael H. Salsbury, Presidential Authority

in Foreign Trade: Voluntary Steel Import

Quotas from a Constitutional Perspective,

15 VA. J. INT’L L. 179 (1974)................................... 12

Note, The International Emergency Economic

Powers Act: A Congressional Attempt to

Control Presidential Emergency Power, 96

HARV. L. REV. 1102 (1983) ..................................... 12

Oral Argument, V.O.S. Selections, Inc. v.

Trump, No. 1:25-cv-00066 (Ct. Intl. Trade

May 13, 2025) ......................................................... 11

Regulation of Consumer Credit, Exec. Order

No. 8843 (1941) ...................................................... 14

Reopening Banks, Exec. Order No. 8773

(1933) ...................................................................... 13

Samuel Anatole Lourie, “Enemy” Under the

Trading with the Enemy Act and Some

Problems of International Law, 42 MICH. L.

REV. 383 (1943) ...................................................... 20

vi

Termination of Additional Duty for Balance of

Payments Purposes, Proclamation 4098

(Dec. 20, 1971) ........................................................ 14

Regulations

U.S. Censorship Regulations, 8 Fed. Reg.

1644 (Feb. 5, 1943) ................................................. 14

Constitutional Provisions

U.S. CONST. art. I, § 1 .................................................. 5

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

U.S. CONST. art. III, § 1 ............................................... 8

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public-policy

research foundation established in 1977 and dedicated

to advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies was

established in 1989 to help restore the principles of

limited constitutional government that are the

foundation of liberty. Toward those ends, Cato

publishes books and studies, conducts conferences,

produces the annual Cato Supreme Court Review, and

files amicus briefs.

Cato Institute scholars have published extensive

research on regulation and constitutional law. This

case interests the Cato Institute because it concerns

the legality of a contested exercise of executive power

that threatens the separation of powers and economic

liberty.

1 Rule 37 statement: No part of this brief was authored by any

party’s counsel, and no person or entity other than amicus funded

its preparation or submission.

2

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Soon after taking office, President Trump issued a

series of executive orders and proclamations imposing

tariffs on imports from dozens of countries. These

actions, interspersed with negotiations and responses

from some of those countries, resulted in rapid

increases and (partial) decreases in tariff rates. The

President imposed a 10% tariff on most trading

partners, and imports from China were singled out

with a combined tariff rate of 145% (since reduced).

Notably, the President’s orders cite the International

Emergency Economic Powers Act of 1977, 50 U.S.C.

§ 1701 et seq. (“IEEPA”), as a statutory basis for the

President’s unilateral imposition of additional—and

fluctuating—tariffs.

IEEPA grants the President broad authority to

block transactions involving Americans and foreign

nationals, see id. § 1702(a)(1)(B), and Presidents have

frequently invoked it to impose economic sanctions on

foreign governments and foreign citizens. But the

statute explicitly limits this authority to situations

involving “an unusual and extraordinary threat” for

which “a national emergency has been declared for

purposes of this chapter,” and the law provides that

these powers “may not be exercised for any other

purpose.” Id. § 1701(b). “[T]o deal with any [such]

3

threat,” IEEPA continues, the President may “regulate

. . . importation.” Id. §§ 1701(a); 1702(a)(1)(B).

The President’s novel use of IEEPA to impose

tariffs, purportedly to combat illegal drug operations

and trade imbalances, have imposed significant costs

on thousands of American business owners who rely

on imports. A group of states and businesses sued to

enjoin the imposition of these tariffs, alleging

violations of both IEEPA and the Constitution. The

Court of International Trade (CIT) and the Federal

Circuit agreed with V.O.S. Selections that IEEPA does

not authorize the President’s tariffs. This Court should

affirm the Federal Circuit.

In doing so, the Court should “determine the best

reading” of the statute and conclude that it prohibits

the President from setting tariff rates. See Loper

Bright Enters. v. Raimondo, 603 U.S. 369, 400 (2024).

The Constitution vests the power to impose tariffs

solely in Congress. See U.S. CONST. art. I, § 8. The Cato

Institute writes separately to provide historical

context regarding IEEPA’s purposes and the original

understanding of Congress’s constitutional authority

to impose tariffs. For over a century, Congress

exercised that power directly and in exhaustive detail,

even during times of war and economic crisis. When

Congress has chosen to delegate limited authority to

the Executive to vary tariffs, it has done so explicitly

and with clear statutory limits.

The government’s reliance on IEEPA as a source of

unilateral tariff authority breaks with this tradition

4

and misreads the statute. IEEPA contains no

reference to “tariffs” or “duties,” and no President had

cited it to impose tariffs in the nearly 50 years since its

enactment—until now. Congress knows how to grant

tariff-adjustment authority when it chooses to, as it

did in the Tariff Act of 1922, the Tariff Act of 1930, the

Trade Expansion Act of 1962, and the Trade Act of

1974. IEEPA, by contrast, was enacted to limit

executive power, not expand it. Courts should not

credit interpretations of vague emergency statutes

that, for the first time in decades, are “discovered” to

confer vast economic powers on the President.

The government’s reading of IEEPA not only

stretches the text beyond recognition but also

undermines the Framers’ designs for the separation of

powers. Accepting the government’s theory would

mean that Congress, through ambiguous text and

silence, can transfer sweeping legislative power to the

President—a result this Court has cautioned against.

“Courts expect Congress to speak clearly if it wishes to

assign to an agency decisions of vast economic and

political significance.” West Virginia v. EPA, 597 U.S.

697, 716 (2022) (cleaned up).

The Constitution, IEEPA’s text, and over two

centuries of consistent practice point in the same

direction: the tariff power remains in the hands of

Congress. The Court should reject the President’s

5

novel reading of IEEPA and affirm the Federal

Circuit’s decision below.

ARGUMENT

I.

HISTORICAL PRACTICE CONFIRMS THAT

TARIFF-SETTING IS A NONDELEGABLE

LEGISLATIVE POWER.

The Constitution vests “[a]ll legislative powers” in

the Congress. U.S. CONST. art. I, § 1. These legislative

powers include the exclusive authority to set tariff

rates. Id. § 8 (granting Congress the power “to lay and

collect, taxes, duties, imposts and excises”). While

early congressional practice is not dispositive, the

practice of the First Congress is probative of the

original meaning of a constitutional provision. See,

e.g., Marsh v. Chambers, 463 U.S. 783, 790 (1983) (“An

act passed by the first Congress assembled under the

Constitution, many of whose members had taken part

in framing that instrument, . . . is contemporaneous

and weighty evidence of its true meaning.”) (internal

quotation marks omitted).

It is therefore notable that the second law ever

enacted by Congress—and signed by President George

Washington—was a statute establishing detailed

rates of tariffs. See Act of July 4, 1789, 1 Stat. 24. That

law set detailed and exhaustive duties, such as one

cent per pound of brown sugars, fifty cents per pair of

boots, and a 12.5% ad valorem tax on all goods (except

teas) imported from China or India. Id.

6

For generations, Congress zealously guarded its

authority to set tariffs. For more than a century after

the Framing, tariff legislation followed a familiar

pattern: Congress would repeal its previous duties and

replace them with new, specific rates and schedules.

See, e.g., Tariff Act of 1816, 3 Stat. 310; Tariff Act of

1832, 4 Stat. 583; Revenue Act of 1913, 30 Stat. 151.

These statutes gave the President no discretion to

modify duties. Where Congress authorized the

President to administer and enforce customs laws, it

carefully withheld any power to revise or adjust

Congress’s detailed tariff schedules.

Even during the crisis of the Civil War, Congress

retained exclusive control over tariff rates. See Tariff

Act of 1861, 12 Stat. 178 (detailed schedule of duties);

Act of July 13, 1861, 12 Stat. 255–57 (delegating

substantial wartime powers). While Congress granted

the President considerable discretion to exercise his

executive powers—like shutting down whole ports

held by rebel forces—it did not authorize him to alter

tariff rates. Even in wartime, when rebel forces

controlled American territory, Congress did not

concede its legislative tariff powers.2

In the late 19th and early 20th centuries, Congress

began granting the Executive limited authority to

negotiate trade agreements and to apply duties

2 See Section III, infra, for a discussion of President Lincoln’s

wartime imposition of a “bonus” on traders and an explanation of

why that episode provides no support for the government’s

position.

7

selectively based on foreign governments’ conduct. But

even then, Congress retained the core legislative

function: it prescribed detailed duty schedules and

permitted the President to activate or suspend them

only under certain conditions. For example, the Tariff

Act of 1883, 22 Stat. 488, banned cattle imports unless

the Secretary of the Treasury found them free from

disease. The Tariff Act of 1890, 26 Stat. 567,

authorized the President to suspend free trade

agreements and impose statutory duties if another

nation’s duties on American goods were “unequal and

unreasonable.” In each instance, the President could

not set new rates at will; he could only trigger duties

Congress had already prescribed. See id.

In short, for at least the first century of the

Republic, Congress consistently set duty schedules

and never relinquished its duty-setting power to the

President. Nor, as far as we can tell, did Presidents

assert any inherent or emergency power to set tariff

rates,3 even during wars, financial panics, and

Strictly speaking, the government has no special

“emergency powers”; it has only those powers enumerated in the

Constitution. The Framers “knew what emergencies were, knew

the pressures they engender for authoritative action, [and] knew,

too, how they afford a ready pretext for usurpation.” Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952) (Jackson,

J., concurring). While it was “impossible to foresee or define the

extent and variety of national exigencies” that might beset the

country, THE FEDERALIST No. 23, at 132–33 (Alexander Hamilton)

(Royal Classics ed. 2020) (capitalization normalized), the

3

8

depressions. This unbroken practice is important in

determining the original meaning of a constitutional

provision and the best interpretation of IEEPA. See

Marsh, 463 U.S. at 790; The Pocket Veto Case, 279 U.S.

655, 689 (1929) (“Long settled and established practice

is a consideration of great weight in a proper

interpretation of constitutional” issues of separation of

powers.”).

The reason for this longstanding practice is clear:

Congress cannot vest duty-setting power—a

legislative power—with the President, just as

Congress cannot vest judicial power with the

President or the Speaker of the House. See U.S. CONST.

art. III, § 1 (vesting the judicial power “in one supreme

Court, and in such inferior Courts as the Congress may

from time to time ordain and establish”); J.W.

Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406

(1922) (“[I]t is a breach of the National fundamental

law if Congress gives up its legislative power and

transfers it to the President, or to the Judicial branch,

or if by law it attempts to invest itself or its members

with either executive power or judicial power.”).4

Framers equipped the three branches with enumerated powers to

handle those emergencies.

4 While modern practice is less probative in determining the

original meaning of Congress’s duty-setting power, recent history

does not aid the President much. Even in the early- and mid-20th

century, when Congress authorized the President to function as

the principal actor in the formulation of trade policy, it

constrained his discretion by reference to objective, if sometimes

9

II. IEEPA DOES NOT AUTHORIZE THE

PRESIDENT TO MODIFY TARIFF RATES.

The Supreme Court recently reaffirmed a “judicial

practice dating back to Marbury: that courts decide

legal questions by applying their own judgment.”

Loper Bright, 603 U.S. at 391–92. The President’s

interpretation of IEEPA is not entitled to deference—

rather, it is the duty of the courts to “determine the

best reading” of a contested statute. Id. at 400. The

best reading of IEEPA is that it provides the President

no authority to unilaterally modify tariff schedules.

A. IEEPA Provides No Textual Support for

Tariff Authority.

As this brief’s historical survey, supra,

demonstrates, Congress knows how to give the

President discretion—within limits—to modify tariff

rates. And Congress did so, for instance, in the Tariff

Act of 1922, the Trade Act of 1974, and the Trade

Expansion Act of 1962, the latter of which President

Trump used in his first term when modifying tariffs. It

is notable that in those statutes, Congress expressly

identified “duty” or “duties” modification as a

permissible policy tool for the President. See 19 U.S.C.

§ 2411(c)(1)(B) (permitting the U.S. Trade

vague or contested, standards. See J.W. Hampton, 276 U.S. at

409–11 (affirming the constitutionality of the Tariff Act of 1922,

which authorized the Executive to vary tariffs to “equalize the . . .

differences in costs of production” between the United States and

another nation, but limited rate increases to 50% of existing

rates).

10

Representative to “give preference to the imposition of

duties over the imposition of other import

restrictions”); 19 U.S.C. § 1821(a) (permitting the

President to “enter into trade agreements” and

“modif[y] . . . any existing duty”). In contrast, the

relevant provisions in IEEPA make no mention of

“duty,” “duties,” or “tariffs.” See 50 U.S.C. § 1702.

This omission is fatal to the government’s strained

interpretation. “Courts expect Congress to speak

clearly if it wishes to assign to an agency decisions of

vast economic and political significance.” West

Virginia v. EPA, 597 U.S. at 716 (cleaned up). Careful

textual analysis is especially important in emergency

power cases, as presidents often adopt an expansive

view of what qualifies as an “unusual and

extraordinary threat”—including domestic issues in

countries halfway around the world.5 Notably, this

administration has declined to offer any limiting

principle for its emergency declarations.6

The Supreme Court has also emphasized that

Executive

Branch

interpretations

“issued

5 See, e.g., Blocking Property of Certain Persons Contributing

to the Conflict in Cote d’Ivoire, Exec. Order 13396 (Feb. 7, 2006)

(declaring that violence in Cote d’Ivoire “constitutes an unusual

and extraordinary threat to the national security and foreign

policy of the United States”).

6 Judge Restani offered the hypothetical as to whether a

national peanut butter shortage might constitute an “unusual

and extraordinary threat.” The administration attorney replied,

“it probably depends.” Oral Argument at 1:09:25, V.O.S.

11

contemporaneously with the statute at issue, and

which have remained consistent over time, may be

especially useful in determining the statute’s

meaning.” Loper Bright, 600 U.S. at 394. A telling

signal that the government’s interpretation is

unsound is that, nearly 50 years after IEEPA’s

enactment, no President invoked it to impose tariffs—

until now. It appears the government would have this

Court believe that the President and his trade

advisers, like Indiana Jones in the Raiders of the Lost

Ark, found a valuable artifact—an unconditional

delegation of legislative power—gathering dust in the

depths of the U.S. Code. This Court has warned courts

against rubber-stamping such Executive branch

“discoveries” of new authority in decades-old statutes.

See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324

(2014) (“When an agency claims to discover in a longextant statute an unheralded power to regulate a

significant portion of the American economy, . . . we

typically greet its announcement with a measure of

skepticism.”) (internal quotation marks omitted).

This Court should reject the government’s

argument that, after 150 years, Congress silently

Selections, Inc. v. Trump, No. 1:25-cv-00066 (Ct. Intl. Trade May

13, 2025).

12

transferred to the President most of its immense dutymaking powers through IEEPA’s ambiguous language.

B. IEEPA’s Origins Confirm That Tariff

Authority Remains with Congress.

Finally, the government’s position runs contrary to

the purposes of IEEPA. In the 1970s, Congress

undertook a long-overdue effort to rein in Presidents’

unilateral actions in foreign trade and transactions.

See Michael H. Salsbury, Presidential Authority in

Foreign Trade: Voluntary Steel Import Quotas from a

Constitutional Perspective, 15 VA. J. INT’L L. 179, 186

(1974) (“Since 1934, the President’s authority to

impose restrictions on foreign trade has been

significantly curtailed by statute.”). Congress codified

IEEPA in 1977 to clarify and limit the executive

branch powers that had metastasized under IEEPA’s

predecessor, the Trading with the Enemy Act of 1917.

See Note, The International Emergency Economic

Powers Act: A Congressional Attempt to Control

Presidential Emergency Power, 96 HARV. L. REV. 1102,

1102 (1983).

Originally, Section 5(b) of the Trading with the

Enemy Act of 1917 granted the President authority

over Americans’ transactions with foreign nationals

only during wartime.7 But within days of taking office,

See Stoehr v. Wallace, 255 U.S. 239, 242 (1921) (“The

Trading with the Enemy Act . . . is strictly a war measure, and

finds its sanction in the constitutional provision, Art. I, § 8, cl. 11,

empowering Congress ‘to declare war, grant letters of marque and

7

13

President Franklin Roosevelt unilaterally invoked

Section 5(b) in peacetime to respond to bank failures

and the Depression.8 A few days later, Congress

ratified those actions and greatly expanded the scope

of the President’s powers under Section 5(b) to

peacetime “emergencies” and transactions with any

foreign citizen, ally or enemy. See Act of March 9, 1933,

48 Stat. 1, 1–2. Congress amended the Act again in the

early days of war in December 1941, including new

authority to “regulate . . . importation.” See Act of Dec.

18, 1941, 55 Stat. 839, 839–40; codified at 50 U.S.C.

§ 4305(b)(3).

The Trading with the Enemy Act became (and,

though amended, still is) an immensely powerful law,

enabling Presidents to exercise sweeping, and at times

authoritarian, powers. In the 1930s, the law was used

to place banks under the supervision of the federal

government and prohibit them from paying out gold to

bank customers (the so-called “bank holiday”),9 to

compel all Americans to surrender all of their gold and

gold certificates to their nearest bank,10 and to impose

national regulation of consumer credit in order to curb

reprisal, and make rules concerning captures on land and

water.’”).

8 Oct. 6, 1917, ch. 106, § 5, 40 Stat. 415, codified, as amended,

at 50 U.S.C. § 4305. See also The International Emergency

Economic Powers Act, supra, at 1102.

9 Reopening Banks, Exec. Order No. 8773 (1933).

10 Forbidding the Hoarding of Gold Coin, Gold Bullion and

Gold Certificates, Exec. Order No. 6102 (1933).

14

inflation.11 The Roosevelt administration even invoked

the Act in wartime to censor all news, mail, and

communications from abroad—including “[r]umors

which might render aid and comfort to the enemy” and

“[a]ny other matter whose dissemination might

directly or indirectly . . . disparage the foreign

relations of the United States or the United Nations.”

U.S. Censorship Regulations, 8 Fed. Reg. 1644–46

(Feb. 5, 1943).

Later Presidents used the Trading with the Enemy

Act in trade policy. In his final days in office in 1968,

President Lyndon Johnson issued an executive order

to halt and supervise capital transfers abroad in order

to improve the nation’s “balance of payments position.”

Governing Certain Capital Transfers Abroad, Exec.

Order 11387 (1968). His successor, President Nixon,

relied on the Act in August 1971 to impose a 10% tariff

on imports to improve America’s balance of payments

as the U.S. withdrew from the gold standard.

Imposition of Supplemental Duty for Balance of

Payments Purposes, Proclamation 4074 (Aug. 15,

1971).12

In response to these unilateral actions in trade

policy, Congress moved to clarify and restrict

Regulation of Consumer Credit, Exec. Order No. 8843

(1941).

12 Those tariffs were terminated by proclamation three

months later. See Termination of Additional Duty for Balance of

Payments Purposes, Proclamation 4098 (Dec. 20, 1971). The

United States Court of Customs and Patent Appeals held that the

11

15

presidential authority. In the Trade Act of 1974,

Congress provided express and narrow authority to

address balance-of-payments issues in trade. See 19

U.S.C. § 2132. Three years later, Congress passed

IEEPA to constrain the President even further. As one

contemporaneous

account

explained,

IEEPA’s

“primary purpose . . . [was] to revise the Trading With

the Enemy Act of 1917 (TWEA), and thus to restrict

presidential authority to respond to emergencies

related to international economic transactions.” Mary

M.C. Bowman, Presidential Emergency Powers related

to International Economic Transactions, 11 VAND. L.

REV. 515, 515 (1978).

It is thus ironic—and legally untenable—for a

President to invoke IEEPA for tariff-setting authority

that no President has ever claimed. Even President

Franklin Roosevelt—who had an expansive theory of

presidential power and governed during an economic

depression and a global war—never used IEEPA’s

more powerful predecessor, the Trading with the

Enemy Act and its “regulate . . . importation”

provision, to modify tariffs. Courts should not require

Congress to play legislative whack-a-mole and respond

specifically to every claimed emergency a President

imposition of duties was a valid exercise of the authority

delegated to the President by section 5(b) of the Trading with the

Enemy Act (TWEA). See United States v. Yoshida Int’l, Inc., 526

F.2d 560 (Ct. Cust. & Pat. App. 1975); Alcan Sales v. United

States, 534 F.2d 920 (Cust. & Pat. App. 1976), cert. denied, 429

U.S. 986 (1976).

16

might use to usurp Congress’s powers. The text of the

Constitution is clear that duty-setting is a legislative

power, and the history of tariffs and “emergency

power” legislation like IEEPA confirms that Congress

provided no authority to the President to unilaterally

impose tariffs.

III. THE EXECUTIVE’S POWER TO LEVY

DUTIES IN WAR IS NO PRECEDENT FOR

TARIFFS IN PEACE.

The question here is whether Congress, by using

the phrase “regulate . . . importation” in IEEPA,

intended to incorporate the law-of-war understanding

that phrase may have carried under the Trading with

the Enemy Act. Although some have suggested that it

did, the historical record and this Court’s separation of

powers precedents point in the opposite direction.

Namely, Professor Bamzai’s brief in support of neither

party offers valuable scholarly background that this

Court should consider. His central contention is that

“the use of . . . a ‘tax’ or ‘fee’ remains an appropriate

method by which the executive branch may ‘regulate

. . . importation’ under the IEEPA today.” Bamzai

Amicus Br. 28. He concedes, however, that “the

meaning of the modern statute cannot be entirely free

of doubt,” id. at 27, and we respectfully submit that

importing—so to speak—law-of-war concepts into

IEEPA is indeed a doubtful enterprise.

To begin with, the historical precedents that

Professor Bamzai references do not support the claim

that “regulate . . . importation” authorizes peacetime

17

tariffs. In each instance—the Mexican-American War,

the Civil War, and the Spanish-American War—the

exaction arose during a U.S. military occupation or

blockade and reflected the conqueror’s right in

international law to exercise civil law authority in

hostile or insurrectionary territory. The tariffs here, by

contrast, regulate commerce at U.S. ports in

peacetime. We address Professor Bamzai’s three

precedents in turn.

First, during the Mexican-American War,

President Polk authorized the imposition of duties on

ships arriving at Tampico—then a Mexican port

occupied by the U.S. military. Fleming v. Page, 50 U.S.

603, 614 (1850). This Court upheld the President’s

authority because Tampico was an enemy port under

military control and the duties “were nothing more

than contributions levied upon the enemy.” Id. at 616.

They were not an exercise of the taxing power nor a

delegation from Congress, but action taken under the

law of nations. Id. at 615 (“For, by the laws and usages

of nations, conquest is a valid title, while the victor

maintains the exclusive possession of the conquered

country.”). A few years later, the Court affirmed that

the “power to impose duties on imports and tonnage”

at conquered and occupied ports is an exercise of the

“belligerent rights of a conqueror.” Cross v. Harrison,

57 U.S. 164, 190 (1853).

Second, President Lincoln’s exactions during the

Civil War bear somewhat closer resemblance to the

present controversy. See Hamilton v. Dillin, 88 U.S. 73

18

(1874). There, the U.S. miliary imposed a four-centper-pound fee on cotton from rebel Tennessee. But the

Court rejected the argument “that Nashville, being

within the National lines, was not hostile territory.”

Id. at 94. The Court expressly held that the fee was

“not imposed in the exercise of the taxing power, but of

the war power of the government.” Id. at 74. The fees

were lawful only because they applied to territories “in

a state of insurrection” where “the condition of

hostility remained.” Id. at 95.

Moreover, the Hamilton Court’s careful and

repeated description of the Civil-War exaction as a

“bonus”—a term found nowhere in the Constitution—

confirms its unease with treating such wartime

exactions as duties or taxes. See id. at 91–93, 97

(characterizing the exaction as a “bonus”). This Court

distinguished the bonus from the Article I power “to

lay and collect taxes, duties, imposts, and excises,”

holding that the power to impose a bonus “does not

belong to the same category as the power to levy and

collect taxes, duties, and excises.” Id. at 97.

Third, Professor Bamzai cites President McKinley’s

imposition of tariffs “upon the occupation of any forts

and places in the Philippine Islands.” Lincoln v.

United States, 197 U.S. 419, 428 (1905). As he notes,

this was a wartime measure and the President’s

authority to impose duties “expired on the treaty of

peace.” Bamzai Amicus Br. 15; see Lincoln, 197 U.S. at

427–28. President McKinley’s tariffs at the port of

Manila therefore offer no support for the notion that,

19

during peacetime, the President may set tariff rates at

domestic ports.

Each example Professor Bamzai invokes thus

involved the President acting as temporary sovereign

under international law—not as a domestic regulator

under a peacetime statute.

The peacetime-wartime understanding governed

the Trading with the Enemy Act. As this Court later

observed, the Act “is strictly a war measure and finds

its sanction in . . . the power to declare war.” Stoehr,

255 U.S. at 242. Congress added authority to “regulate

. . . importation” to the Act only days after the Pearl

Harbor attack. First War Powers Act of 1941, Pub. L.

No. 77-354, § 301, 55 Stat. 838, 839. And, as noted

supra, President Roosevelt never used that

importation regulation authority to set tariff rates at

domestic ports.

So when Congress later codified that language in

IEEPA for non-war national emergencies, it did so

against a wholly different constitutional backdrop.

Moreover, the terms within the Trading with the

Enemy Act were later employed—both in statute and

in practice—in novel and sometimes idiosyncratic

ways, as presidents and executive agencies departed

20

from many nineteenth-century common-law and

international-law norms.13

Finally, extending the TWEA’s wartime conception

of “regulate . . . importation” to authorize uncapped

tariff rates in peacetime would erase the boundary

between the President’s (contested) law-of-war powers

and the tariff power reserved to Congress. This Court

should reject a simple equivalence between the

TWEA’s “regulate . . . importation” and IEEPA’s use of

the same phrase. Such equivalence would suggest

that, in 1977, Congress quietly gave the President the

law-of-war right of a conqueror over the ports of Long

Beach, Charleston, and Seattle—akin to the President

Lincoln’s authority over occupied Nashville or

President McKinley’s over occupied Manila. The

administration’s interpretation fails on statutory

grounds alone; but accepting it would also conflate the

Congress’s Article I tariff power and the conqueror’s

right to temporarily impose civil government on

hostile territory. That is a delegation and separation

See, e.g., Samuel Anatole Lourie, “Enemy” Under the

Trading with the Enemy Act and Some Problems of International

Law, 42 MICH. L. REV. 383, 385, 388, 400 (1943) (noting that the

U.S. government has treated the Act’s definitions flexibly because

“the exigencies of modern total warfare do not permit rigid

adherence to legal fictions or notions . . . or even to legal rules

drafted . . . to meet the ideas and conditions prevailing before

World War I”).

13

21

of powers issue

countenanced.

that

this

Court

has

never

CONCLUSION

For the foregoing reasons, and those stated by

V.O.S. Selections, the Court should affirm the decision

of the Federal Circuit.

Respectfully submitted,

Thomas A. Berry

Counsel of Record

Brent Skorup

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(443) 254-6330

tberry@cato.org

October 24, 2025