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, 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 Before Judgment to the United

States Court of A ppeals for the District of Columbia

Circuit and On Writ of Certiorari to the United States

Court of A ppeals for the Federal Circuit

BRIEF OF AMICUS CURIAE AMERICAN COLLEGE

OF TAX COUNSEL IN SUPPORT OF PETITIONERS

IN NO. 24-1287 AND RESPONDENTS IN NO. 25-250

Theodore P. Seto

Professor of Law

Burns 322

919 Albany Street

Los Angeles, CA 90015

John M. Colvin

Counsel of Record

Jason A. Harn

Colvin + Hallett, P.S.

719 Second Avenue,

Suite 711

Seattle, WA 98104

(206) 223-0800

jcolvin@colvinhallettlaw.com

Counsel for Amicus Curiae

120732

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

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

INTEREST OF THE AMICUS . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

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

A. The IEEPA Does Not Authorize the

Imposition of Revenue-Raising Tariffs

or Other Taxes by Executive Order . . . . . . . . . . . 5

B. Whether Imposition of the Reciprocal

Tariffs Might Be Authorized by Other

Statutes is Not Before the Court . . . . . . . . . . . . . 9

C. Gibbons v. Ogden Does Not Stand for the

Proposition That by Using the Phrase

“Regulate … Importation” Congress

Intended to Authorize the President to

Impose Tariffs or Taxes Not Otherwise

Authorized by Congress . . . . . . . . . . . . . . . . . . . 12

D. The IEEPA Is Not a Revenue-Raising

Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

E. Case Law Under the Internal Revenue

Code Demonstrates That a Broad Grant

of Regulatory Authority Does Not Grant

Plenary Authority Over Taxes . . . . . . . . . . . . . . 19

ii

Table of Contents

Page

F.

If a Decision is Rendered Under Either

the Non-Delegation Doctrine or the Major

Questions Doctrine, There Could be FarReaching and Unforeseeable Impacts on

the Federal Tax System . . . . . . . . . . . . . . . . . . . 25

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

iii

TABLE OF CITED AUTHORITIES

Cases

Page

3M Co. v. Comm’r,

No. 23-3772, 2025 WL 2790424

(8th Cir. Oct. 1, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . 23

Ala. Ass’n of Realtors v.

Dep’t of Health & Hum. Servs.,

594 U.S. 758 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Am. Inst. for Int’l Steel v. United States,

376 F. Supp. 3d 1335 (Ct. Int’l Trade 2019) . . . . . . . 10

Am. Standard, Inc. v. United States,

602 F.2d 256 (Ct. Cl. 1979) . . . . . . . . . . . . . . . . . . 20, 21

Ashwander v. Tenn. Valley Auth.,

297 U.S. 288 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Biden v. Nebraska,

600 U.S. 477 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Blodgett v. Holden,

275 U.S. 142 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Chapman v. Comm’r,

618 F.2d 856 (1st Cir. 1980) . . . . . . . . . . . . . . . . . . . . 26

Clark v. Martinez,

543 U.S. 371 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

iv

Cited Authorities

Page

Comm’r v. First Security Bank of Utah, N.A.,

405 U.S. 394 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Comm’r v. General Machinery Corp.,

95 F.2d 759 (6th Cir. 1938) . . . . . . . . . . . . . . . . . . . . . 20

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

426 U.S. 548 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) . . . . . . . . . . . . . . . . 3, 12, 13

Gould v. Gould,

245 U.S. 151 (1917) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

INS v. Chadha,

462 U.S. 1919 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Jennings v. Rodriguez,

583 U.S. 281 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 25

McCulloch v. Maryland,

17 U.S. 316 (1819) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Millard v. Roberts,

202 U.S. 429 (1906) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

v

Cited Authorities

Page

Moore v. United States,

602 U.S. 572 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Nat’l Fed’n of Indep. Bus. v. OSHA,

595 U.S. 109 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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

567 U.S. 519 (2012) . . . . . . . . . . . . . . . . . . . . . . . . 29, 30

Okla. Tax Comm’n v. Chickasaw Nation,

515 U.S. 450 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Panhandle Oil Co. v. Mississippi ex rel. Knox,

277 U.S. 218 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Parsons v. Bedford,

3 Pet. 433 (1830) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Rite Aid Corp., et al. v. United States,

255 F.3d 1357 (Fed. Cir. 2001) . . . . . . . . . . . . 21, 22, 27

Twin City Bank v. Nebeker,

167 U.S. 196 (1897) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Byrum,

408 U.S. 125 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Generes,

405 U.S. 93 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Munoz-Flores,

495 U.S. 385 (1990) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

vi

Cited Authorities

Page

United States v. Romero-Fernandez,

983 F.2d 195 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

West Virginia v. EPA,

597 U.S. 697 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Constitutional Provisions

U.S. Const. art. I, § 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

U.S. Const. art. I, § 8 . . . . . . . . . . . . . . . . 2, 3, 9, 12, 13, 19

Statutes

2 U.S.C. § 601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

19 U.S.C. § 1862 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

19 U.S.C. § 2132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

26 U.S.C. § 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

26 U.S.C. § 965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

26 U.S.C. § 1502 . . . . . . . . . . . . . . . . . . . . . . . 19, 22, 24, 27

26 U.S.C. § 1702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

26 U.S.C. § 7508A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

26 U.S.C. § 7805(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

vii

Cited Authorities

Page

50 U.S.C. § 1701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

50 U.S.C. § 1701(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

50 U.S.C. § 1702(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

50 U.S.C. § 1702(a)(1)(B) . . . . . . . . . . . . . . . . . . . . 3, 5, 7, 8

50 U.S.C. § 1706(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

American Jobs Creation Act of 2004,

Pub. L. No. 108-357, 118 Stat. 1600 . . . . . . . . . . . . . .21

Reciprocal Trade Agreements Act of 1934,

Pub. L. No. 73-316, 48 Stat. 943 . . . . . . . . . . . . . . . . 13

Revenue Act of 1861, ch. 45, 12 Stat. 292 . . . . . . . . . . . . . 8

Revenue Act of 1862, ch. 119, 12 Stat. 432 . . . . . . . . . . . . 8

Revenue Act of 1864, ch. 173, 13 Stat. 223 . . . . . . . . . . . . 8

Revenue Act of 1916, ch. 463, 39 Stat. 756 . . . . . . . . . . . . 8

Revenue Act of 1932, ch. 209, 47 Stat. 169 . . . . . . . . . . . . 8

Revenue Act of 1942, ch. 619, 56 Stat. 798 . . . . . . . . . . . . 8

Tax Reform Act of 1986,

Pub. L. No. 99-514, 100 Stat. 2085 . . . . . . . . . . . . . . 23

Tea Act of 1773, 13 Geo. 3, c. 44 . . . . . . . . . . . . . . . . . . . 14

viii

Cited Authorities

Page

Trade Agreements Extension Act of 1955,

Pub. L. No. 84-86, 69 Stat. 162 . . . . . . . . . . . . . . . . . 11

Rules

House Rule X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

House Rule XXI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Senate Rule XXV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Regulations

Former Treas. Reg. § 1.1502-20 (1991) . . . . . . . . . . . . . 21

Treas. Reg. § 1.482-1(h)(2) . . . . . . . . . . . . . . . . . . . . . . . . 23

Other Authorities

101 Cong. Rec. 5292–5299 (1955) . . . . . . . . . . . . . . . . . . 11

Mary Amiti et al., The Impact of the 2018 Tariffs

on Prices and Welfare, 33 J. Econ. Persps. 187

(2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

U.S. International Trade in Goods and Services,

July 2025, Bureau of Econ. Analysis (Sept. 4,

2025), https://www.bea.gov/data/intl-tradeinvestment/international-trade-goods-andservices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ix

Cited Authorities

Page

W. Elliot Brownlee, Federal Taxation in America:

A Short History (2d ed. 2004) . . . . . . . . . . . . . . . . 9, 12

Chad P. Bown & Douglas A. Irwin, Even Now,

Tariffs Are a Tiny Portion of US Government

Revenue, Peterson Inst. Int’l Econ. (July 16,

2019), https://www.piie.com/research/piiecharts/2019/even-now-tariffs-are-tiny-portionus-government-revenue . . . . . . . . . . . . . . . . . . . . . . . 12

John F. Coverdale, Court Review of Tax Regulations

and Revenue Rulings in the Chevron Era,

64 Geo. Wash. L. Rev. 35 (1995) . . . . . . . . . . . . . . . . 25

Ex. Order No. 14,257, Regulating Imports with a

Reciprocal Tariff to Rectify Trade Practices

that Contribute to Large and Persistent

Annual United States Goods Trade Deficits,

90 Fed. Reg. 15,041 (Apr. 2, 2025) . . . . . . . . . . . . . . . . 6

David Goldman & Matt Egan, Trump Says He’ll

Eliminate Income Taxes. There’s a Problem

with That, CNN Business (Apr. 28, 2025,

1:19 PM), https://www.cnn.com/2025/04/28/

business/taxes-trump-tariffs . . . . . . . . . . . . . . . . . . . 18

Michael J. Graetz, Ref lections on the Tax

Legislative Process: Prelude to Reform,

58 Va. L. Rev. 1389 (1972) . . . . . . . . . . . . . . . . . . . . . 16

H.R. Rep. No. 93-1644 (1974) (Conf. Rep.) . . . . . . . . . . . 11

x

Cited Authorities

Page

H.R. Rep. No. 95-459 (1977) . . . . . . . . . . . . . . . . . . . . . . 16

Kristin E. Hickman, Coloring Outside the

Lines: Examining Treasury’s (Lack of )

Compliance with Administrative

Procedure Act Rulemaking Requirements,

82 Notre Dame L. Rev. 1727 (2007) . . . . . . . . . . . . . 25

James R. Hines, Jr. & Kyle D. Logue,

Delegating Tax, 114 Mich. L. Rev. 235 (2015) . . . . . 20

Internal Revenue Service Data Book, 2024, I.R.S.

(2025), https://www.irs.gov/pub/irs-pdf/p55b.pdf . . . . 18

I.R.S. Notice 2020-23, 2020-18 I.R.B. 742 . . . . . . . . . . . 26

I.R.S. Notice 2021-21, 2021-15 I.R.B. 986 . . . . . . . . . . . 26

I.R.S. Notice 2023-21, 2023-11 I.R.B. 563 . . . . . . . . . . . 26

Douglas A. Irwin, Clashing Over Commerce: A

History of US Trade Policy (2017) . . . . . . . . . . . . 3, 12

Joint Comm. on Taxation, Description of the “Small

Business and Farm Economic Recovery Act”,

JCX-88-02 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Megan S. Lynch, Cong. Rsch. Serv., R41408, Rules

and Practices Governing Consideration of

Revenue Legislation in the House and Senate

(2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

xi

Cited Authorities

Page

Magna Carta, ch. 12 (1215), in A. Howard,

Magna Carta: Text and Commentary (1964) . . . . . 14

Susan C. Morse, Shu-Yi Oei, & Diane M. Ring, The

Origination Clause and the President’s Tariffs,

103 Wash. U. L. Rev. __ (forthcoming 2026), https://

papers.ssrn.com/sol3/papers.cfm?abstract_id=

5632071# . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Richard Rubin & Anthony DeBarros, DOGE,

Deficits and More Fiscal Takeaways – What

Changed, and Didn’t in the U.S.’s Budget

Picture for the Latest Year, Wall St. J.,

Oct. 10, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

S. Rep. No. 95-466 (1977) . . . . . . . . . . . . . . . . . . . . . 11, 17

Stanley S. Surrey & Paul R. McDaniel, The Tax

Expenditure Concept: Current Developments

and Emerging Issues, 20 B. C. L. Rev. 225

(1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

The Federalist No. 12 (Alexander Hamilton) . . . . . . . . . 3

The Federalist No. 32 (Alexander Hamilton) . . . . . . . . . 3

The Federalist No. 58 (James Madison) . . . . . . . . . . . . 14

xii

Cited Authorities

Page

The White House, Fact Sheet: President Donald

J. Trump Declares National Emergency to

Increase our Competitive Edge, Protect our

Sovereignty, and Strengthen our National and

Economic Security (Apr. 2, 2025) . . . . . . . . . . . . . . . . 6

The White House, Reciprocal Trade and Tariffs

(Feb. 13, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

U.S. Trade Balance, Macrotrends, https://www.

macrotrends.net/global-metrics/countries/

usa/united-states/trade-balance-deficit . . . . . . . . . . . 8

Erica York & Alex Durante, Trump Tariffs:

Tracking the Economic Impact of the Trump

Trade War, Tax Found. (Oct. 3, 2025), https://

taxfoundation.org/research/all/federal/trumptariffs-trade-war/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

1

INTEREST OF THE AMICUS1

The American College of Tax Counsel (the “College”)

respectfully submits this brief as amicus curiae in support

of the Petitioners in No. 24-1287 and the Respondents

in No. 25-250. The College takes no position on trade

policy or the wisdom of specific tariff levels. Its interest

lies solely in ensuring that judicial interpretations of

statutory text conform with established principles of

congressional authorization and tax law structure,

preserving predictability and uniformity for taxpayers.

The College is a nonprofit professional association

of tax lawyers in private practice, in law school teaching

positions, and in government, who are recognized for

their excellence in tax practice and for their substantial

contributions and commitment to the profession. The

purposes of the College are:

• To foster and recognize the excellence of its

members and to elevate standards in the

practice of the profession of tax law;

• To stimulate development of skills and

k nowledge t h rough pa r t icipat ion i n

continuing legal education programs and

seminars;

1. No counsel for any party authored this brief in whole or

in part, and no person other than the amicus or its counsel made

a monetary contribution intended to fund the preparation or

submission of this brief.

2

• To provide additional mechanisms for input

by tax professionals in development of tax

laws and policy; and

• To facilitate scholarly discussion and

examination of tax policy issues.

The College is composed of approximately 700 Fellows

who are recognized for their outstanding reputations and

contributions to the field of tax law. It is governed by a

Board of Regents consisting of one Regent from each

federal judicial circuit, two Regents at large, the Officers

of the College, and the last retiring President of the

College. This amicus brief is submitted by the College’s

Board of Regents and does not necessarily reflect the

views of all members of the College, including those who

are government employees.

SUMMARY OF ARGUMENT

When it enacted the International Emergency

Economic Powers Act (“IEEPA”) in 1977, Congress was

not exercising its authority to impose taxes and tariffs

under Article I, Section 8, clause 1. The IEEPA is not a

revenue-raising statute, and its delegation of authority to

the Executive cannot be read to permit the President to

raise billions or trillions of dollars by unilaterally imposing

Reciprocal Tariffs via Executive Order No. 14,257. 2

2. The tariffs imposed by Executive Order No. 14,257 are

collectively referred to in this brief as “Reciprocal Tariffs” because

this is how they were referred to by the courts below, though there

is nothing “reciprocal” about them.

3

Tariffs or taxes are not mentioned in the laundry list

of powers granted to the President under the IEEPA.

Nevertheless, the Government argues that the phrase

“investigate, *** regulate, direct and compel, nullify, void,

prevent or prohibit, any acquisition, holding, withholding,

use, transfer, withdrawal, transportation, importation or

exportation of, or dealing in *** any property in which

any foreign country or national thereof has any interest”

in 50 U.S.C. § 1702(a)(1)(B) should be parsed to give the

President the authority to “regulate” “importation”

by imposing tariffs. 3 (Emphasis added). Following the

logic proffered by the Government, the statute would

also grant the President the authority to “regulate” any

“uses,” “transfers,” “transportation” or “dealing in”

imported property, effectively imbuing the President with

the power to impose excise or other taxes on a host of

transactions involving imported property (e.g., sales taxes,

use taxes, value added taxes, and transportation taxes).4

3. Tariffs have been considered taxes since the nation’s

founding up until today. The Federalist Nos. 12, 32 (Alexander

Hamilton) (identifying import duties (tariffs) as taxation available

to and properly administrated by the federal government); Douglas

A. Irwin, Clashing Over Commerce: A History of US Trade Policy

5 (2017) (“Import tariffs are taxes levied on foreign goods as

they enter the United States.”); Mary Amiti et al., The Impact of

the 2018 Tariffs on Prices and Welfare, 33 J. Econ. Persps. 187,

188–189, 191 n. 2 (2019) (defining President Trump’s 2018 tariffs as

import taxes that cost importing businesses additional tax costs).

4. As discussed in Section C below, more than 200 years ago,

the Court made clear that the authority to impose tariffs arises

from the taxing power conferred by Article I, Section 8, clause 1

of the Constitution. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).

Accordingly, from the perspective of Constitutional analysis,

labelling a revenue raising measure as a “tariff,” rather than a

“tax,” is without import.

4

The statute does not grant such broad and unfettered

authority to the President.

With respect to federal taxes, Congress has in many

instances delegated substantial authority to Treasury

to identify problems in the application of the Internal

Revenue Code and react appropriately. However, these

delegations have never been read to authorize Treasury

to impose taxes that differ in kind or amount from

those imposed by Congress. The President’s wholesale

revamping of the tariff system without the participation

of Congress is not authorized by the statute.

We recognize that the non-governmental parties have

argued for application of the non-delegation doctrine or

the major questions doctrine to set aside the Reciprocal

Tariffs. As this case can be resolved as a matter of

statutory interpretation, we urge the Court to expressly

avoid addressing any non-delegation or major questions

doctrine issues. Many of the delegations under the

Internal Revenue Code rely upon Treasury to identify

unforeseen problems and complexities in the tax code and

react appropriately. Unnecessarily addressing the nondelegation or major questions doctrines would introduce

uncertainty and instability with respect to substantial

portions of the federal tax law, undermining taxpayers’

reliance on established and predictable rules that have

long been recognized by the Court as a critical feature of

our federal tax system.

5

ARGUMENT

A. The IEEPA Does Not Authorize the Imposition

of Revenue-Raising Tariffs or Other Taxes by

Executive Order.

After Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024), the Court reviews the Executive’s

statutory interpretations de novo. The dispositive question

is whether the IEEPA’s text, structure, and history supply

clear authority to impose revenue-raising tariffs. They

do not.

At issue is the scope of the authority granted to

the President by 50 U.S.C. § 1702(a)(1)(B), part of

the International Emergency Economic Powers Act,

50 U.S.C. § 1701 et seq. (“IEEPA”). That subsection

authorizes the President, to the extent specified in section

1701, to (1) “investigate, block during the pendency of

an investigation, regulate, direct and compel, nullify,

void, prevent or prohibit” (2) “any acquisition, holding,

withholding, use, transfer, withdrawal, transportation,

importation or exportation of, or dealing in, or exercising

any right, power, or privilege with respect to, or

transactions involving,” (3) “any property in which any

foreign country or a national thereof has any interest by

any person or with respect to any property, subject to

the jurisdiction of the United States.” 50 U.S.C. § 1701(b),

in turn, provides that “[t]he authorities granted to the

President by section 1702 of this title may only be exercised

to deal with an unusual and extraordinary threat *** and

may not be exercised for any other purpose.”

The Reciprocal Tariffs are not limited to specific items

or industries (e.g., oil or steel). Rather, asserting that

6

the imbalance in the trade in goods posed a significant

threat to the American economy, the President adopted

a baseline tariff of 10% on all goods (including goods

from those countries where the United States maintains

a surplus in the balance of trade in goods). See Ex. Order

No. 14,257, Regulating Imports with a Reciprocal Tariff

to Rectify Trade Practices that Contribute to Large and

Persistent Annual United States Goods Trade Deficits,

90 Fed. Reg. 15,041, 15,045 (Apr. 2, 2025). With respect

to countries where there was a deficit in the balance

of trade in goods, 5 the Executive Order listed higher

tariffs based on the size of the imbalance as compared

to the total amount of imported goods from that country.

Id.; The White House, Fact Sheet: President Donald

J. Trump Declares National Emergency to Increase

our Competitive Edge, Protect our Sovereignty, and

Strengthen our National and Economic Security (Apr.

2, 2025) (“President Trump will impose an individualized

reciprocal higher tariff on the countries with which the

United States has the largest trade deficits. All other

countries will continue to be subject to the original 10%

tariff baseline.”).

The Government seizes upon two words in the

IEEPA—“regulate” and “importation”—to support the

Executive Order’s imposition of the Reciprocal Tariffs.

5. O ver the yea rs, the United States’ economy has

transitioned from producing manufactured goods to providing

high-value services. While the United States has a large balance

of trade deficit in goods, this is significantly, but not entirely, offset

by its balance of trade surplus with respect to services. See U.S.

International Trade in Goods and Services, July 2025, Bureau

of Econ. Analysis (Sept. 4, 2025), https://www.bea.gov/data/intltrade-investment/international-trade-goods-and-services.

7

The Government argues that the combination of those two

words grants the President authority to impose revenueraising tariffs like the Reciprocal Tariffs. This ignores

the remainder of the text.

The Government’s interpretation violates ordinary

canons of statutory interpretation. Section 1702(a)

(1)(B) explicitly authorizes a list of specific types of

action—“investigate, block during the pendency of an

investigation, regulate, direct and compel, nullify, void,

prevent or prohibit.” Nowhere does it explicitly authorize

imposing tariffs. Indeed, the words “tariffs” and “taxes”

do not appear anywhere in the IEEPA.

The Government might equally pair the word

“regulate” with any other noun in the second part of

the subsection (“any acquisition, holding, withholding,

use, transfer, withdrawal, transportation, importation

or exportation of, or dealing in”). For example, the

Government might seize on the word “acquisition” instead

of “importation,” and argue that 50 U.S.C. § 1702(a)(1)(B)

authorizes the imposition of taxes on the “acquisition”

of any property held by foreign nationals subject to the

jurisdiction of the United States—in other words, that it

authorizes the imposition of sales or value added taxes.

Or that it authorizes taxes on the “use” of any such

property—i.e., use taxes. Or taxes on the “transportation”

of such property—taxes on transportation, including

transportation within the United States. Each of these

taxes would almost certainly have the practical effect

of limiting imports, just like tariffs. Nowhere does the

Government disavow unilateral presidential authority to

impose any such taxes, the authority of which is implied

equally by its argument. Nor does the Government

8

suggest that the word-pair “regulate” and “importation”

should be afforded a special meaning such that any taxes

authorized by its reading of 50 U.S.C. § 1702(a)(1)(B) are

limited to taxes imposed only upon “importation.”

The United States’ trade deficit has existed for

half a century. See U.S. Trade Balance, Macrotrends,

https://www.macrotrends.net/global-metrics/countries/

usa/united-states/trade-balance-deficit (last visited

Oct. 22, 2025). While the College takes no position on

the factual basis of the declared emergency, the use of

a statute designed for acute crises to address a chronic,

half-century-old economic condition should be taken into

account in determining the scope of the authority granted

by Congress under the IEEPA. The Court should be

reluctant to infer a broad, unstated power of taxation in

an emergency statute when the declared “emergency” is

a long-standing problem for which Congress possesses

numerous non-emergency legislative tools. Moreover, the

College notes that when Congress intends to authorize the

imposition of revenue-raising taxes, it does so explicitly.6

6. Over the life of the Republic, Congress has responded

to threats—ranging from the Civil War to World War II—by

raising or imposing new taxes. See, e.g., Revenue Act of 1861, ch.

45, §§ 49–51, 12 Stat. 292, 309–311, repealed by Revenue Act of

1862, ch. 119, § 89–93, 12 Stat. 432–473, amended by Revenue

Act of 1864, ch. 173, § 116–123, 13 Stat. 223, 281–285 (repealed

1872) (creating the nation’s first income tax to finance Civil War

expenditures); Revenue Act of 1916, ch. 463, 39 Stat. 756 (enacting

federal income, estate, munitions, and other taxes in response

to World War I); Revenue Act of 1932, ch. 209, §§ 12–13, 401,

47 Stat. 169, 174–177, 243–44 (raising income, corporate, and

estate tax rates in response to the Great Depression); Revenue

Act of 1942, ch. 619, §§ 103, 172, 56 Stat. 798, 802–803, 884–894

(raising income tax rates and establishing short-lived Victory Tax

9

It is important to bear in mind the Constitutional

principles that are at stake in this case. If the Court

upholds the Reciprocal Tariffs: (1) the IEEPA will have

been construed to effect a semi-permanent transfer of

power from Congress to the President over tariffs and

other revenue-raising measures authorized thereunder;7

(2) the IEEPA will have been construed in a manner that

significantly alters the allocation of fiscal authority set

forth in Article I, Section 8, clause 1; and (3) it would be

difficult to imagine any principled basis on which to deny

any President the authority to decide tariff issues (and

perhaps other tax issues) without consulting Congress.

Article I, Section 8, clause 1 will, in effect, have been

partially eviscerated, and a portion of the powers granted

to Congress by that clause transferred to the President.

B. Whether Imposition of the Reciprocal Tariffs

Might Be Authorized by Other Statutes is Not

Before the Court.

In other statutes, Congress has at various times

and for various reasons given emergency powers to the

President to address trade issues. These powers include

the right to impose temporary tariffs to address serious

in response to World War II); see also W. Elliot Brownlee, Federal

Taxation in America: A Short History 31–37, 58–121 (2d ed. 2004)

(discussing taxation responses to threats). We are not aware of

any circumstance where the Executive branch has attempted to

impose such taxes unilaterally, or where the Court has considered

and sustained such an effort.

7. The transfer of authority would last until limiting

legislation is passed by Congress and a President is willing to

sign a bill depriving him of this power, or there are enough votes

in Congress to override the President’s veto of such a bill.

10

balance of payment issues (19 U.S.C. § 2132) and the right

to adjust imports that threaten to impair national security

(19 U.S.C. § 1862).

Thus, for example, in Fed. Energy Admin. v.

Algonquin SNG, Inc., 426 U.S. 548 (1976), the Court

considered the language of 19 U.S.C. § 1862 (section 232

of the Trade Act of 1974) which authorized the President

to “take such action *** to adjust the imports” of items

that the Secretary of the Treasury determined threatened

National Security. The Court held that a licensing fee

scheme (exactions economically equivalent to tariffs),

implemented by the President with respect to oil imports

during the 1970s oil crisis was authorized under 19 U.S.C.

§ 1862. See Algonquin, 426 U.S. at 570–571. However,

the Algonquin court was careful to note that its opinion

was a limited one that “in no way compels the further

conclusion that any action the President might take,

as long as it has a remote impact on imports, is also so

authorized.” Id. at 571 (emphasis in original); see also

Am. Inst. for Int’l Steel v. United States, 376 F. Supp. 3d

1335 (Ct. Int’l Trade 2019), aff’d, 806 F. Appx. 982 (Fed.

Cir. 2020), cert. denied, 141 S.Ct. 133 (2020) (following

Algonquin). Because Algonquin was decided before recent

developments in the major questions doctrine, which raise

a significant barrier to open-ended delegations of decisions

of “vast economic and political significance,”8 the Court

should place significant weight on the Algonquin opinion’s

caution that its construction of a similar statute should not

8. Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs.,

594 U.S. 758, 764 (2021); see also Biden v. Nebraska, 600 U.S. 477

(2023); West Virginia v. EPA, 597 U.S. 697 (2022); Nat’l Fed’n of

Indep. Bus. v. OSHA, 595 U.S. 109 (2022).

11

be read to give the President a free hand with respect to

all actions that would have an impact on imports.

The Court’s decision in Algonquin is further

distinguishable by the starkly different legislative

histories of the two statutes. The legislative record of the

Trade Agreements Extension Act of 1955, Pub. L. No. 8486, 69 Stat. 162 (predecessor to 19 U.S.C. § 1862), contains

explicit floor statements from senators indicating they

understood the authority to “adjust imports” to include the

imposition of fees and duties. 101 Cong. Rec. 5292–5299

(1955); see H.R. Rep. No. 93-1644, at 29 (1974) (Conf. Rep.)

(reaffirming the President “may *** take such action, and

for such time, as he deems necessary, to adjust imports so

as to prevent impairment of national security” under 19

U.S.C. § 1862); see also Algonquin, 426 U.S. at 561–571

(collecting legislative history).

In sharp contrast, the legislative history of IEEPA

contains no such discussion of revenue-raising authority.

To the contrary, as noted below, the Congressional Budget

Office scored the bill as having no budgetary impact (S.

Rep. No. 95-466, at 6 (1977)), definitive evidence that

Congress understood IEEPA as a targeted regulatory

tool, rather than a grant of taxing power.

In any event, neither the interpretation nor the

constitutionality of any statutes outside the IEEPA

are before the Court. The Questions Presented to this

Court are limited to the IEEPA. Having chosen to rely

on the IEEPA, the Government is bound by its choice.

See, e.g., Moore v. United States, 602 U.S. 572 (2024)

(Barrett, J., concurring) (noting taxpayers had not raised

question of constitutionality of subpart F of the tax

12

code) (“Subpart F and the [Mandatory Repatriation Tax

imposed by 26 U.S.C. § 965 (“MRT”)] may or may not be

constitutional, nonarbitrary attributions of closely held

foreign corporations’ income to their shareholders. In this

litigation, however, the Moores have conceded that subpart

F is constitutional. *** And I agree with the Court that

subpart F is not meaningfully different from the MRT

in how it attributes corporate income to shareholders.”).

C. Gibbons v. Ogden Does Not Stand for the Proposition

That by Using the Phrase “Regulate … Importation”

Congress Intended to Authorize the President to

Impose Tariffs or Taxes Not Otherwise Authorized

by Congress.

Prior to the adoption of the income tax, tariffs were

one of the primary sources of funding for the federal

government. See Irwin, supra, at 78. Tariffs only became

a significantly smaller portion of gross federal revenues

after modern income and payroll taxes were put in place

in the late 1930s and early 1940s. See Brownlee, supra,

at 58–121 (explaining the rise of the modern tax regime);

Chad P. Bown & Douglas A. Irwin, Even Now, Tariffs

Are a Tiny Portion of US Government Revenue, Peterson

Inst. Int’l Econ. (July 16, 2019), https://www.piie.com/

research/piie-charts/2019/even-now-tariffs-are-tinyportion-us-government-revenue.

In Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)

(Marshall, C.J.), the Court considered whether the act of

imposing duties on imports was properly considered part

of Congress’ powers under the taxing authority of Article

I, Section 8, clause 1, or whether it was a creature of the

power to regulate commerce under Article I, Section 8,

13

clause 3. The Court determined that these powers were

“entirely distinct,” classifying the power to impose duties

on imports as falling under the taxing authority conferred

to Congress by Section 8, clause 1. 22 U.S. at 201 (“We

think it very clear, that it is considered as a branch of the

taxing power. *** The power of imposing duties on imports

is classed with the power to levy taxes, and that seems to

be its natural place.”).

While the government’s Merits Brief cites Gibbons

for the proposition that “the right to regulate commerce,

even by the imposition of duties, was not controverted”

by the Framers (Gov’t Merits Br., at 24), the Gibbons

Court understood that tariffs were first and foremost a

method of generating revenue for the federal coffers. The

Gibbons Court devoted substantial effort to distinguishing

Congress’s power to regulate Commerce (which pre-empts

the field) from its taxing power (which does not pre-empt

state taxation). Id. at 201–203.

In any event, the fact that Congress may indirectly

regulate commerce by imposing duties does not mean that

any delegation to the President of the power to regulate

some aspect of commerce necessarily includes the power

to impose duties or other revenue-raising measures by

Executive Order. When Congress taxes commerce via

tariffs, statutory delegations have been express and

bounded9 —underscoring that the taxing power is not

silently subsumed within a grant “to regulate.”

9. For example, the Reciprocal Trade Agreements Act of

1934, Pub. L. No. 73-316, 48 Stat. 943, authorized the President to

negotiate bilateral, reciprocal trade agreements and to proclaim

limited adjustments to tariff rates without congressional action.

14

D. The IEEPA Is Not a Revenue-Raising Statute.

Imposition of taxes without consent of the People’s

representatives was one of the impelling causes of the

American Revolution. The Boston Tea Party was a protest

against import duties (tariffs) imposed by the Tea Act of

1773, 13 Geo. 3, c. 44, and similar exactions. The clarion

cry “no taxation without representation” originated as a

protest against taxes imposed without the consent of the

People through their representatives, a principle rooted in

earlier English legal traditions such as the Magna Carta.10

The power to levy taxes and duties receives special

treatment under the Constitution, pursuant to Article I,

Section 7, clause 1, which provides “All [b]ills for [r]aising

revenue shall originate in the House of Representatives

***.” The purpose of the Origination Clause is to ensure that

the most democratically representative Chamber is the one

with primary authority over the scope and level of exactions

made against the People by the federal government.

See United States v. Munoz-Flores, 495 U.S. 385, 395

(1990) (explaining the Constitution placed origination

power in the House because that “Chamber is more

accountable to the people”) (citing The Federalist No. 58

(James Madison)).

Origination Clause precedent helps to show why the

IEEPA does not authorize the President to impose the

tariffs at issue here. The Reciprocal Tariffs raise revenue

for the Treasury’s general fund and for unspecified

10. “No scutage or aid shall be imposed in [o]ur kingdom

unless by common counsel thereof ***.” Magna Carta, ch. 12 (1215),

in A. Howard, Magna Carta: Text and Commentary 38 (1964).

15

purposes. Accordingly, they are only valid if authorized

by a statute that is categorized as revenue raising

under the Origination Clause. Statutes are not general

revenue-raising statutes if they aim to accomplish a

specific and tailored goal, such as the establishment of

a national currency, Twin City Bank v. Nebeker, 167

U.S. 196, 202–203 (1897); the construction of a railroad,

Millard v. Roberts, 202 U.S. 429, 435–437 (1906); or the

establishment of a crime victims’ fund, Munoz-Flores,

495 U.S. at 397–400.

The IEEPA, however, is designed to accomplish

the specific and tailored goal of addressing an “unusual

and extraordinary threat.” Addressing a threat is not a

general revenue-raising goal, and it does not authorize

the President to impose general revenue-raising tariffs.

See Susan C. Morse, Shu-Yi Oei & Diane M. Ring, The

Origination Clause and the President’s Tariffs, 103 Wash.

U. L. Rev. (forthcoming 2026), https://papers.ssrn.com/

sol3/papers.cfm?abstract_id=5632071#.

Furthermore, in enacting the IEEPA, Congress did

not follow its normal processes for dealing with tax or

tariff legislation, which is further evidence that the IEEPA

should not be construed as a revenue statute. Congress’

procedures for considering revenue bills in the late-1970s

did not accord exactly with the modern reconciliation

process established by the 1974 Congressional Budget

Act, 2 U.S.C. § 601 et seq. See Stanley S. Surrey & Paul

R. McDaniel, The Tax Expenditure Concept: Current

Developments and Emerging Issues, 20 B.C. L. Rev.

225, 300–304 (1979) (describing nonconforming process

for the Tax Reform Act of 1976). Nevertheless, the prereconciliation process still provided special treatment for

16

revenue bills. For example, it featured public hearings

and private consultations involving the House Ways and

Means Committee, the Senate Finance Committee, the

Joint Committee on Taxation, and the Secretary of the

Treasury. See Michael J. Graetz, Reflections on the Tax

Legislative Process: Prelude to Reform, 58 Va. L. Rev.

1389, 1395–1397 (1972).

Similarly, the Congressional Budget Act, 2 U.S.C.

§ 601 et seq., provides special treatment for bills

containing revenue provisions, inter alia, requiring

revenue estimates prepared in consultation with the

Congressional Budget Office. In addition, Congress

treats tariff matters as “revenue legislation,” subject to

special procedures. Megan S. Lynch, Cong. Rsch. Serv.,

R41408, Rules and Practices Governing Consideration

of Revenue Legislation in the House and Senate (2015)

(summarizing the most significant procedural rules

applicable to the process of developing and considering

revenue legislation).11 Congress did not follow these rules

in reviewing and enacting the IEEPA.

The IEEPA was not considered by House Ways

and Means, Senate Finance, or the Joint Committee

on Taxation, but rather by the House Committee on

International Relations12 and the Senate Committee on

11. Examples of such rules include: House Rule X, which

grants the House Ways and Means Committee jurisdiction over

revenue measures, including “customs revenue” (House Rule X,

cl. 1(t) and House Rule XXI, cl. 5(a)(1)); and Senate Rule XXV,

which gives the Senate Finance Committee jurisdiction over

revenue measures, including “tariffs and import quotas” (Senate

Rule XXV, cl. 1(i)).

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

17

Banking, Housing and Urban Affairs.13 This is unsurprising

given that the bulk of the specific powers granted to the

Executive under the IEEPA authorize the President to

cancel or otherwise control financial transactions with

foreign countries and nationals in times of war and national

emergency. Significantly, the Congressional Budget Office

estimated that the bill would have no budgetary impact. S.

Rep. No. 95-466 (1977), at 6 (emphasis added). The fact that

the statute was not reviewed by the tax-writing committees

is a strong indication that Congress did not believe it was

transferring plenary taxing authority14 over imports to

the President, exercisable via an essentially unreviewable

declaration of emergency.15

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

14. When Congress enacted the IEEPA in the late 1970s,

legislative vetoes were still understood to be constitutional.

Accordingly, Congress included a provision in the IEEPA enabling

Congress to terminate the Executive’s authority upon concurrent

resolution. See 50 U.S.C. § 1706(b). Subsequently, in the wake of

the Court’s decision in INS v. Chadha, 462 U.S. 1919 (1983), the

Eleventh Circuit ultimately determined 50 U.S.C. § 1706(b) to

be an unconstitutional (but severable) legislative veto. United

States v. Romero-Fernandez, 983 F.2d 195, 196 (1993). However,

Congress’ inclusion of section 1706(b) makes clear the President’s

authority under the IEEPA was not meant to be plenary—

Congress intended to always have continuing participation, and

the Executive acknowledged as much when the IEEPA was signed

into law.

15. See Gov’t Merits Br., at 41– 43, arguing that the

President’s determination that longstanding trade deficits amount

to an “unusual and extraordinary threat” is not subject to judicial

review. However, the baseline 10% tariffs (imposed even on goods

from countries with whom the United States enjoys a trade

surplus) imposed by the Executive Order are not consistent with

responding to an unusual or extraordinary threat, but rather

appear to reflect policy differences, i.e., the President’s rejection

18

T h e P r e s i d e nt , d e s p i t e a l a c k o f e x p l i c i t

congressional authorization, has suggested that the

Reciprocal Tariffs—purportedly imposed under the

authority of the IEEPA—are intentionally revenueproducing and may even replace the income tax as the

principal source of federal revenue. See David Goldman &

Matt Egan, Trump Says He’ll Eliminate Income Taxes.

There’s a Problem with That, CNN Business (Apr. 28,

2025, 1:19 PM) https://www.cnn.com/2025/04/28/business/

taxes-trump-tariffs (reporting the President’s statement

that “the tariffs will be enough to cut all of the income

tax”). One leading estimate puts the likely collections

under the tariffs at issue here at $1.7 trillion over ten

years. See Erica York & Alex Durante, Trump Tariffs:

Tracking the Economic Impact of the Trump Trade

War, Tax Found. (Oct. 3, 2025), https://taxfoundation.org/

research/all/federal/trump-tariffs-trade-war/ (estimating

the Reciprocal Tariffs’ revenue contribution at $1.7 trillion

over ten years).16 In the fiscal year ended September 30,

2025, the federal government collected $195 billion in

tariff revenue, more than double the approximately $75

billion collected in the preceding fiscal year. See Richard

Rubin & Anthony DeBarros, DOGE, Deficits and More

Fiscal Takeaways – What Changed, and Didn’t in the

of the free trade philosophy previously pursued by Congress and

prior Presidents over much of the last century.

16. While the estimated $1.7 trillion in tariff revenue over

10 years is not a small amount, it is a fraction of the more than $5

trillion collected annually by the IRS under the Internal Revenue

Code. Internal Revenue Service Data Book, 2024, I.R.S., at 3 tbl.1

(2025), https://www.irs.gov/pub/irs-pdf/p55b.pdf. Given what is

at stake, the College counsels against undermining the integrity

of the current tax system through expansive readings of the

President’s authority to raise revenue through other channels.

19

U.S.’s Budget Picture for the Latest Year, Wall St. J., Oct.

10, 2025, at A2.

The actions taken here by the Executive are avowedly

for the purpose of raising substantial general revenues.

But the magnitude of collections cannot expand the text of

the statute. The fact that the IEEPA was not considered

by the tax-writing committees and was scored by the

Congressional Budget Office as having no budgetary

impact is definitive evidence that Congress did not intend

it to be a revenue-raising statute.

E. Case Law Under the Internal Revenue Code

Demonstrates That a Broad Grant of Regulatory

Authority Does Not Grant Plenary Authority Over

Taxes.

Given that the Taxing Powers Clause (U.S. Const. art.

I, § 8, cl. 1) authorizes Congress to impose federal taxes

under the Internal Revenue Code as well as tariffs, it is

useful to consider the limits that courts have imposed

on apparently broad delegations of regulatory authority

granted under the Internal Revenue Code. Courts

have never interpreted these delegations as giving the

Executive carte blanche with respect to creating new tax

structure out of whole cloth. Rather, courts have confined

Executive discretion using the boundaries of the statutory

scheme or purpose authorized by Congress.

For example, 26 U.S.C. § 1502 authorizes the

Secretary of the Treasury to adopt regulations providing

rules for the determination of the tax liability of an

affiliated group of corporations filing a consolidated

tax return. The consolidated return regulations have

been characterized as one of the broadest delegations

of authority found in the Internal Revenue Code. See,

20

e.g., Am. Standard, Inc. v. United States, 602 F.2d 256,

260–261 (Ct. Cl. 1979) (noting Congress delegated power

to the Secretary to promulgate regulations that are

“unlike ordinary Treasury Regulations,” but rather “are

legislative in character and have the force and effect of

law.”); James R. Hines, Jr. & Kyle D. Logue, Delegating

Tax, 114 Mich. L. Rev. 235, 251–252 (2015).

Yet even this regulatory free hand has not been

viewed as giving the Treasury the authority to impose

new, substantive taxes on taxpayers without Congress’

express authorization. Shortly after the promulgation of

the first set of consolidated return regulations, Treasury

tried to limit the ability of consolidated return taxpayers

to take the benefit of loss carryforwards arising in preconsolidation years. The Sixth Circuit ruled that even

though the regulatory delegation was broad, it did not

permit the agency to create rules that directly contravened

otherwise applicable provisions of the Internal Revenue

Code. Comm’r v. General Machinery Corp., 95 F.2d 759,

761 (6th Cir. 1938).

Subsequent courts have cautioned that the power

granted to Treasury to make special rules governing

consolidated taxpayers must be construed in light of

Congress’ intent that the resulting tax liability “clearly

reflect the income” of (and prevent tax avoidance by) the

consolidated group. See, e.g., Am. Standard, Inc., 602 F.2d

at 261. In other words:

Income tax liability is not imposed by the

Secretary’s regulations, but by the Internal

Revenue Code. Thus, the purpose of the

delegation of power to the Secretary can be

stated more broadly as the power to conform

the applicable income tax law of the Code to

21

the special, myriad problems resulting from

the filing of consolidated income tax returns.

Though there may be many reasonable methods

to determine a group’s tax liability and the

Secretary’s authority is absolute when it

represents a choice between such methods,

the statute does not authorize the Secretary to

choose a method that imposes a tax on income

that would not otherwise be taxed.

Id. at 262 (emphasis added) (holding that the special tax

treatment provided to Western Hemisphere Trading

Companies and public utilities could not be abrogated

by regulation when such companies were members of

affiliated groups who filed consolidated tax returns).

These consolidated return cases stand for the

proposition that courts will not read even a broad grant of

authority to the President or the Treasury as delegating

the power to impose additional taxes not specified by

Congress.

In Rite Aid Corp., et al. v. United States, 255 F.3d

1357 (Fed. Cir. 2001), the Federal Circuit hewed to the

above-described precedent and held that Treasury had no

authority to promulgate a consolidated return regulation

(former Treas. Reg. § 1.1502-20 (1991), which imposed

the so-called duplicate loss rules) that would effectively

impose a tax not owed by non-consolidated corporations.

See 255 F.3d at 1360.

Believing that Rite-Aid had too tightly cabined

Treasury, Congress modified the statute to permit

consolidated return regulations to depart from the

ordinary principles of income tax. American Jobs Creation

Act of 2004, Pub. L. No. 108-357, § 844(a), 118 Stat. 1600

22

(codified as amended in 26 U.S.C. § 1502). The revised

statutory language provides that “the Secretary may

prescribe rules that are different from the provisions of

chapter 1 [the substantive income tax] that would apply if

such corporations filed separate returns.” 26 U.S.C. § 1502

(emphasis added).

However, the Joint Committee Report makes clear

that, even under the newly expanded delegation of

authority, Congress understood that Treasury remained

constrained to choose a path that results in no more than

the correct liability under the existing tax law:

[T]he Treasury Department is authorized

to issue consolidated return regulations

utilizing either a single taxpayer or separate

taxpayer approach or a combination of the two

approaches, as Treasury deems necessary in

order that the tax liability of any affiliated

group of corporations making a consolidated

return, and of each corporation in the group,

both during and after the period of affiliation,

may be determined and adjusted in such

manner as clearly to reflect the income-tax

liability and the various factors necessary

for the determination of such liability, and in

order to prevent avoidance of such liability.

Joint Comm. on Taxation, Description of the “Small

Business and Farm Economic Recovery Act”, JCX-8802, at 90 (2002) (emphasis added). Even though Congress

departed from the separate taxpayer theory adopted by the

Rite Aid court, the Joint Committee Report demonstrated

that Congress continued to insist on fidelity to the general

income tax statutes passed by Congress in confirming that

23

the approach, whether separate, consolidated or mixed,

should clearly reflect income under the Code.

Another area in which Treasury has been delegated

substantial authority is the reallocation of items of income

and deduction between commonly controlled entities

pursuant to 26 U.S.C. § 482. In 3M Co. v. Comm’r, No. 233772, 2025 WL 2790424 (8th Cir. Oct. 1, 2025), the court

recently rejected an effort by Treasury to eliminate by

regulation the requirement that income subject to potential

reallocation to a member of a commonly controlled group

must be income that such member could legally receive—a

principle established by this Court in Comm’r v. First

Security Bank of Utah, N.A., 405 U.S. 394, 403 (1972).

Relying upon a 1986 statutory amendment providing

that, in the case of intangible property, “the income with

respect to such transfer or license shall be commensurate

with the income attributable to the intangible” (Tax

Reform Act of 1986, Pub. L. No. 99-514, § 1231(e)(1),

100 Stat. 2085, 2562–2563 (codified as amended at 26

U.S.C. § 482)), Treasury adopted a regulation allowing

it to disregard foreign legal restrictions in determining

whether and how much intangible income to reallocate.

See Treas. Reg. § 1.482-1(h)(2). While the IRS argued that

26 U.S.C. § 482 “delegated discretionary authority” to the

agency to make the proposed reallocation (3M Co., 2025

WL 2790424, at *6), the Eighth Circuit in 3M Company

held that, as this Court recognized in First Security

Bank, the statute itself imposed a “dominion and control”

test, which could not be overridden by regulation. 3M Co.,

2025 WL 2790424, at *4–6. Despite a grant of substantial

discretion to the agency, the 3M Company court refused

to allow the IRS to impose a tax where no income was (or

could be) received by a U.S. taxpayer.

24

If the Court were to adopt a broad reading of the

delegation of the authority in the IEEPA to “regulate”

“importation” which permitted the Executive to implement

a novel tariff structure in the name of regulating imports,

there is no principled reason why the Treasury could not

make substantial adjustments to the income taxation of

consolidated taxpayers (most of this country’s largest

businesses) by “prescrib[ing] rules that are different

from the provisions of chapter 1.” For example, Treasury

could determine that the income taxation of consolidated

taxpayers should be based on financial statement income,

rather than on income computed under chapter 1 of the

Code. Despite statements in the 2002 Joint Committee

Report that the regulations should clearly reflect income,

under the literal language of 26 U.S.C. § 1502, there

is a substantial argument that this approach would be

permissible. However, we submit that neither the IEEPA

nor 26 U.S.C. § 1502 should be read as Congress ceding

such plenary taxing authority to the Executive Branch.

The rules for reallocating income between commonly

controlled entities pursuant to 26 U.S.C. § 482 could

similarly be implicated by a broad ruling giving the

President the authority to tax imports pursuant to the

IEEPA. As much of the case law and regulations under

26 U.S.C. § 482 address transfer pricing between U.S.

companies and related foreign entities, under the authority

of the IEEPA, the President could presumably implement

an all-new transfer pricing system going far beyond

the scope of section 482, without further congressional

authorization.

As the Court remarked more than a century ago, in

interpreting “statutes levying taxes it is the established

rule to not extend their provisions *** beyond the clear

import of the language used.” Gould v. Gould, 245 U.S.

25

151, 153 (1917). Because the IEEPA does not mention

tariffs or taxes, the Court should be reluctant to imply the

delegation of wholesale taxing authority to the Executive.

F. If a Decision is Rendered Under Either the NonDelegation Doctrine or the Major Questions

Doctrine, There Could be Far-Reaching and

Unforeseeable Impacts on the Federal Tax System.

Treasury is generally authorized to “prescribe all

needful rules and regulations for the enforcement of this

title [26].” 26 U.S.C. § 7805(a). In addition, hundreds of

Internal Revenue Code provisions contain more specific

grants of regulatory authority. See John F. Coverdale,

Court Review of Tax Regulations and Revenue Rulings

in the Chevron Era, 64 Geo. Wash. L. Rev. 35, 52 (1995)

(finding more than 1,000 such grants); Kristin E. Hickman,

Coloring Outside the Lines: Examining Treasury’s (Lack

of) Compliance with Administrative Procedure Act

Rulemaking Requirements, 82 Notre Dame L. Rev. 1727,

1735 nn.37–38 (2007) (citing one search that located 293

such grants and another that found over 550).

Through these statutes, Congress delegates to the

tax specialists at Treasury the responsibility to identify

potential interpretative problems, implement regulatory

fixes, and issue other clarifying guidance. The system has

worked well, and—especially in the wake of the Court’s

decision in Loper Bright Enterprises v. Raimondo, 603

U.S. 369 (2024)—the College believes that taxpayers have

adequate tools to challenge agency overreach and agency

errors in statutory interpretation.

In most cases, Congress’ delegations of authority to

Treasury and the IRS result in greater predictability

and more flexibility in the application of the tax laws.

26

For example, in 26 U.S.C. § 7508A, Congress provides

Treasury the authority to postpone the statutory

deadlines for performing certain acts under the Internal

Revenue Code for a period of up to 12 months in response

to a federally declared disaster. When the COVID-19

pandemic struck, the IRS immediately extended a variety

of tax deadlines for taxpayers.17 Similarly, Treasury rules

or IRS guidance show taxpayers how to claim preferential

long-term capital gain rates, structure tax-preferred

business transactions, determine who can claim a child as

a dependent, and avoid income inclusion when they receive

certain benefits at work.

Reliance upon established and predictable rules

is a critical feature of our tax system. The Court has

recognized “the reality that tax administration requires

predictability.” Okla. Tax Comm’n v. Chickasaw Nation,

515 U.S. 450, 459–460 (1995). It has also noted that, in tax

law, “certainty is desirable.” United States v. Generes, 405

U.S. 93, 105 (1972). When courts too readily undertake

the task of re-examining general tax law principles,

“taxpayers may not rely with assurance on what appear to

be established rules lest they be subsequently overturned.”

United States v. Byrum, 408 U.S. 125, 135 (1972); see also

Chapman v. Comm’r, 618 F.2d 856, 874 (1st Cir. 1980)

(noting that “tax planning must proceed on the basis of

settled rules”).

If the Court were to resolve this case by applying

either the non-delegation doctrine or the major questions

doctrine based on the lack of standards for invoking tariff

authority under the IEEPA, it will raise questions about

17. See I.R.S. Notice 2020-23, 2020-18 I.R.B. 742; I.R.S.

Notice 2021-21, 2021-15 I.R.B. 986; and I.R.S. Notice 2023-21,

2023-11 I.R.B. 563.

27

the Executive’s ability to make rules that provide certainty

and predictability to taxpayers. This could have farreaching and unforeseeable consequences for the federal

tax system. If relying on an agency to identify problems

and then employ its expertise to resolve them without

explicit guidance from Congress is impermissible, then

substantial portions of the tax regulatory regime might

be subject to question.

This risk is not merely theoretical. As detailed in Section

E above, the complex consolidated return regulations—a

regime upon which nearly all major American businesses

rely for tax planning and compliance—rest on a broad

delegation of authority under 26 U.S.C. § 1502. The Federal

Circuit’s decision in Rite Aid, supra, demonstrates how

courts have carefully policed the boundaries of that

delegation to prevent the Executive from creating new

substantive tax liabilities where none were intended by

Congress. A broad ruling here under the major questions

doctrine would invite a wave of challenges to this and other

foundational Treasury regulations, injecting profound

uncertainty into the fiscal infrastructure this Court has

recognized requires stability and predictability.

If, on the other hand, the Court resolves this case by

concluding that, under the IEEPA, Congress lawfully

delegated to the President the power to determine by

Executive Order whether to tax imports at all, and at

what rate and upon what terms and conditions, it would

be logically impossible to limit such a holding to tariffs.

For example, such a holding might allow the President, by

Executive Order, to impose a value-added, transportation,

or other tax on imports.18

18. The President has previously asserted that value-added

taxes (VATs) imposed by other countries may be a factor in the

28

The Court should therefore construe 50 U.S.C.

§ 1702(a)(1) narrowly. It should rest its decision on

statutory interpretation and conclude that the Reciprocal

Tariffs are not authorized by the IEEPA’s language

authorizing actions to “regulate” “importation.”

In Ashwander v. Tenn. Valley Auth., 297 U.S. 288

(1936), Justice Brandeis explained what has come to be

known as the canon of constitutional avoidance:

The Court will not pass upon a constitutional

question *** if there is also present some other

ground upon which the case may be disposed

***. [I]f a case can be decided on either of two

grounds, one involving a constitutional question,

the other a question of statutory construction

or general law, the Court will decide only the

latter.

***

When the validity of an act of the Congress is

drawn in question, and even if a serious doubt

of constitutionality is raised, it is a cardinal

principle that this Court will first ascertain

whether a construction of the statute is fairly

possible by which the question may be avoided.

Id. at 347–348. Also see Jennings v. Rodriguez, 583 U.S.

281, 298 (2018) (noting that canon permits a court “to

“non-reciprocal trade relationships with all United States trading

partners” and are “unfair, discriminatory, or extraterritorial

taxes imposed *** on United States businesses, workers, and

consumers.” The White House, Reciprocal Trade and Tariffs, at

§ 2(b) (Feb. 13, 2025).

29

choose between competing plausible interpretations of a

statutory text” in order to avoid addressing Constitutional

questions) (quoting Clark v. Martinez, 543 U.S. 371, 381

(2005)).

As the Court stated in National Federation of

Independent Business v. Sebelius, 567 U.S. 519 (2012)

(Roberts, C.J.):

[I]t is well established that if a statute has two

possible meanings, one of which violates the

Constitution, courts should adopt the meaning

that does not do so. Justice Story said that

180 years ago: “No court ought, unless the

terms of an act rendered it unavoidable, to

give a construction to it which should involve

a violation, however unintentional, of the

constitution.” Parsons v. Bedford, 3 Pet. 433,

448–449 (1830). Justice Holmes made the same

point a century later: “[T]he rule is settled

that as between two possible interpretations

of a statute, by one of which it would be

unconstitutional and by the other valid, our

plain duty is to adopt that which will save the

Act.” Blodgett v. Holden, 275 U.S. 142, 148

(1927) (concurring opinion).

The IEEPA, properly construed, does not authorize

imposition of the Reciprocal Tariffs or any other taxes

by presidential decree. Any uncertainty regarding its

meaning should be resolved in a manner that minimizes

its possible unconstitutionality. It is likewise unnecessary

and inadvisable for the Court to reach a decision on either

the non-delegation doctrine or major questions doctrine.

30

CONCLUSION

Chief Justice John Marshall famously quipped, “[a]n

unlimited power to tax involves, necessarily, a power to

destroy ***.” McCulloch v. Maryland, 17 U.S. 316, 327

(1819). More recently, the Court has declared that the

“power to tax is not the power to destroy while this court

sits.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519,

573 (2012) (quoting Panhandle Oil Co. v. Mississippi

ex rel. Knox, 277 U.S. 218, 223 (1928) (Holmes, J.,

dissenting)). To avoid granting the Executive a “power to

tax” found nowhere in the text of the statute, the Court

should acknowledge that the IEEPA does not transfer a

revenue-raising function from Congress to the Executive

nor does it allow the President to reject the federal tax

and tariff systems authorized by Congress. It should do

both by rendering a decision against the Government in

these cases on statutory interpretation grounds.

Respectfully submitted,

Theodore P. Seto

Professor of Law

Burns 322

919 Albany Street

Los Angeles, CA 90015

John M. Colvin

Counsel of Record

Jason A. Harn

Colvin + Hallett, P.S.

719 Second Avenue,

Suite 711

Seattle, WA 98104

(206) 223-0800

jcolvin@colvinhallettlaw.com

Counsel for Amicus Curiae