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, ET AL.,

Respondents.

-------------------------------------On Writs of Certiorari to the

United States Courts of Appeals for the

District of Columbia and Federal Circuits

-------------------------------------BRIEF OF AMICI CURIAE FORMER

GOVERNMENT OFFICIALS AND LEGAL

SCHOLARS IN SUPPORT OF PETITIONERS

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

-------------------------------------MARK LEMLEY

William H. Neukom

Professor of Law

STANFORD LAW SCHOOL

559 Nathan Abbott Way

Stanford, CA 94305

NORMAN L. EISEN

STEPHEN A. JONAS

JOSHUA G. KOLB

DEMOCRACY DEFENDERS FUND

600 Pennsylvania Avenue, SE,

Suite 15180

Washington, D.C. 20003

MATTHEW A. SELIGMAN

Counsel of Record

STRIS & MAHER LLP

17785 Center Court Dr N

Suite 600

Cerritos, CA 90703

(213) 995-6873

mseligman@stris.com

i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ................................ 1

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

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

I. IEEPA Does Not Authorize Tariffs to

Address Trade Deficits ..................................... 3

A. IEEPA’s Text Demonstrates that it

Does Not Authorize Tariffs to

Address Trade Deficits ............................... 3

B. The Structure of the Statutory

Scheme Confirms that IEEPA Does

Not Authorize Tariffs to Address

Trade Deficits.............................................. 6

C. Historical Practice Comports With

this Properly Circumscribed

Statutory Interpretation of the

President’s Authority Under IEEPA ......... 8

D. The Trade Deficit Tariffs Imposed by

Executive Order 14,257 are

Unlawful.................................................... 11

II. Even if Section 1701 Were Ambiguous,

the Court Must Interpret It Not to

Authorize the Trade Deficit Tariffs ............... 13

A. The Major Questions Doctrine

Requires a Clear Congressional

Authorization to Impose the Trade

Deficit Tariffs That IEEPA Lacks ............ 14

ii

B. The Cannon of Constitutional

Avoidance Requires the Court to Interpret Section 1701 to Avoid Grave

Non-Delegation Concerns ......................... 16

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

APPENDIX – List of Amici Curiae .......................... 1a

iii

TABLE OF AUTHORITIES

Page

Cases

A.L.A. Schechter Poultry Corp. v.

United States,

295 U.S. 495 (1935) ......................................... 18, 20

Alabama

Association

of

Realtors

v.

Department of Health & Human Services,

594 U.S. 758 (2021) .............................................. 15

American Power & Light Co. v. SEC,

329 U.S. 90 (1946) ................................................. 17

Biden v. Nebraska,

600 U.S. 477 (2023) ......................................... 14, 15

Caminetti v. United States,

242 U.S. 470 (1917) ............................................... 13

Connecticut Nat’l Bank v. Germain,

503 U.S. 249 (1992) ............................................... 13

Dames & Moore v. Regan,

453 U.S. 654(1981) ................................................ 11

Fed. Commc’ns Comm’n v. Consumers’ Rsch.,

145 S.Ct. 2482 (2025) .......................... 16, 17, 18, 19

Food and Drug Admin. v. Brown &

Williamson Tobacco Corp.,

529 U.S. 120 (2000) ................................................. 8

Haig v. Agee,

453 U.S. 280 (1981) ............................................... 11

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

276 U.S. 394 (1928) ............................................... 17

Jennings v. Rodriguez,

583 U.S. 281 (2018) ............................................... 21

iv

Menominee Indian Tribe of Wisconsin v.

United States,

577 U.S. 250 (2016) ................................................. 6

Mistretta v. United States,

488 U.S. 361 (1989) ............................................... 17

OPP Cotton Mills, Inc. v. Administrator of

Wage and Hour Div., Dept. of Labor,

312 U.S. 126 (1941) ............................................. 17

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ......................................... 18, 19

Regan v. Wald,

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

Rubin v. United States,

449 U.S. 424 (1981) ............................................... 13

United States v. Garbish,

222 U.S. 257 (1911) ................................................. 6

United States v. Ron Pair Enters., Inc.,

489 U.S. 235 (1989) ............................................... 13

United States v. Yoshida Int’l, Inc.,

526 F.2d 560 (C.C.P.A. 1975) .................................. 6

Utility Air Regulatory Group v. EPA,

573 U.S. 302 (2014) ............................................... 15

W. Virginia v. Env’t Prot. Agency,

597 U.S. 697 (2022) ............................................... 16

Whitman v. Am. Trucking Assns., Inc.,

531 U.S. 457 (2001) ............................................... 18

Youngstown Sheet and Tube Co. v. Sawyer,

343 U.S. 579 (1952) ............................................... 11

Statutes

20 U.S.C. § 1098bb .................................................... 14

v

47 U.S.C. § 254 .................................................... 18, 19

50 U.S.C. § 1701 ................................ 2, 3, 4, 13, 20, 21

50 U.S.C. § 1702 .................................................... 4, 13

Telecommunications Act of 1996 .............................. 18

Trade Act of 1974 .................................................... 3, 7

Trading with the Enemy Act of 1917 ......................... 5

Executive Orders

Executive Order 12,170, Blocking Iranian

Government Property

(November 14, 1979) ............................................... 9

Executive Order 12,513, Prohibiting Trade

and

Other

Transactions

Involving

Nicaragua

(May 1, 1985) ........................................................... 9

Executive Order 12,543, Prohibiting Trade

and Certain Transactions Involving Libya

(Jan. 7, 1986). .......................................................... 9

Executive Order 12,735, Chemical and

Biological Weapons Proliferation

(Nov. 16, 1990) ....................................................... 10

Executive Order 12,775, Prohibiting Certain

Transactions with Respect to Haiti

(Oct. 4, 1991) ........................................................... 9

Executive Order 12,938, Proliferation of

Weapons of Mass Destruction

(Nov. 14, 1994) ....................................................... 10

vi

Executive Order 13,818, Blocking the

Property of Persons Involved in Serious

Human Rights Abuse or Corruption

(Dec. 20, 2017). ...................................................... 10

Executive Order 13,851, Blocking Property of

Certain Persons Contributing to the

Situation in Nicaragua

(Nov. 27, 2018) ....................................................... 10

Executive Order 13,882, Blocking Property

and Suspending Entry of Certain Persons

Contributing to the Situation in Mali

(July 26, 2019) ....................................................... 10

Executive Order 13,894, Blocking Property

and Suspending Entry of Certain Persons

Contributing to the Situation in Syria

(Oct. 17, 2019) ....................................................... 10

Executive Order 13,959, Addressing the

Threat from Securities Investments that

Finance Chinese Military Companies

(Nov. 12, 2020) ......................................................... 9

Executive Order 14,257, Regulating Imports

with a Reciprocal Tariff to Rectify Trade

Practices that Contribute to Large and

Persistent Annual United States Goods

Trade Deficits

(Apr. 7, 2025) ........................................... 1, 3, 11, 13

Other Authorities

Bureau of Econ. Research (last visited

October 24, 2025)................................................... 12

vii

Chris Isadore, Trump aide says tariffs will

raise $6 trillion, which would be largest tax

hike in US history, CNN (Mar. 31, 2025) ............. 12

Congressional

Research

Service,

The

International Emergency Economic Powers

Act: Origins, Evolution, and Use, App’x A

(Jan. 30, 2024) ....................................................... 10

Council on Foreign Relations, The U.S. Trade

Deficit: How Much Does It Matter? (Last

updated April 23, 2025) .......................................... 9

Donald Trump, Remarks by the President on

Reciprocal Tariffs in the Rose Garden,

White House, Washington, D.C.

(Apr. 2, 2025) ......................................................... 12

H. Rep. No. 95-459 (1977) ....................................... 5, 6

In re High-Cost Universal Serv. Support,

25 FCC Rcd. 4072 (2010)....................................... 19

Lysle Boller, Kody Cramody, et. al, The

Economic Effects of President Trump’s

Tariffs, The Wharton School of Business

(Apr. 10, 2025) ....................................................... 15

NEW WEBSTER’S DICTIONARY OF THE ENGLISH

LANGUAGE (1975) ..................................................... 5

Sup. Ct. R. 37.6 ........................................................... 1

THE CONCISE OXFORD DICTIONARY OF

CURRENT ENGLISH (6th ed. 1976)............................ 5

1

INTEREST OF AMICI CURIAE1

Amici curiae are former federal judges, members of

Congress, senior Department of Justice and White

House appointees, and other governmental officials,

including appointees who served in every Republican

administration from the Nixon administration to the

first Trump administration, and legal scholars who

spent their careers dedicated to the rule of law. They

have an interest in the recognition of proper limitations on executive power.2

SUMMARY OF ARGUMENT

This case concerns the most extravagant assertion

of executive power over international trade in American history. In Executive Order 14,257, the president

levied so-called “reciprocal” tariffs ranging from 10%

to 50% on nearly every country in the world. The purported rationale for these unprecedented executiveimposed tariffs was to address “large and persistent”

trade deficits. Neither the Constitution nor the

statutes on which the government relies authorize the

president to seize unilateral control of the world economy through levying tariffs to address decades-long

trade imbalances.

The asserted authority for those executive-imposed

tariffs was the International Emergency Economic

Powers Act. The statute establishes certain emergency powers for the president “to deal with any unusual and extraordinary threat, which has its source in

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

in part, and no person other than amici or their counsel has made

a monetary contribution to the preparation or submission of this

brief. See Sup. Ct. R. 37.6.

2 A list of amici curiae and their institutional affiliations, for

identification purposes only, is provided in Appendix A.

2

whole or substantial part outside the United States,

to the national security, foreign policy, or economy of

the United States.” 50 U.S.C. § 1701. If the president

declares a national emergency with respect to such an

“unusual and extraordinary threat,” the statute authorizes him to “regulate . . . importation” of goods.

The court of appeals correctly held that IEEPA does

not authorize the president to levy the reciprocal tariffs because the delegated power to “regulate . . . importation” to not vest him with the “wide-ranging authority to impose . . . the Reciprocal Tariffs.” JA 39a.

As the court explained, its examination of other statutes “indicate[d] that whenever Congress intends to

delegate to the President the authority to impose tariffs, it does so explicitly, either by using unequivocal

terms like tariff and duty, or via an overall structure

which makes clear that Congress is referring to tariffs.” Id. at 30a. Moreover, the court determined that

the president’s levying of “tariffs qualifies as a decision of vast economic and political significance, so the

Government must point to clear congressional authorization for its interpretation of IEEPA.” Id. at 37a (citations and internal quotation marks omitted). Because IEEPA lacked the requisite clear indication of

Congress’s intent to authorize the president to impose

the tariffs at issue in this case, the court concluded

those tariffs are unlawful.

The “reciprocal” tariffs are unlawful for an additional, independent reason: trade imbalances that

have persisted every year since IEEPA was enacted in

1977 cannot count as an “unusual and extraordinary

threat.” The plain text of IEEPA precludes such typical and ordinary circumstances. The broader statutory

scheme governing the president’s emergency trade

powers that Congress enacted in the 1970s

3

established a coherent framework that confirms that

conclusion. The reformed Trading With the Enemy

Act provided the president’s powers during wartime;

the Trade Act of 1974 explicitly addresses balance of

payments deficits, including trade deficits; and IEEPA

covers “unusual and extraordinary threat[s]” aside

from trade deficits. The history of presidential practice, including during the current president’s prior

term, comports with IEEPA’s limitations by imposing

narrowly targeted actions at genuine national security crises. And even if the statute were ambiguous—

which it is not—both the major question doctrine and

the canon of constitutional avoidance require a clear

statement of Congress’s intent to delegate such tremendous power in one of its core constitutional authorities—levying tariffs—that is plainly lacking in

IEEPA.

For these reasons, the government’s expansive interpretation of the president’s authority under Section

1701 is both unwarranted and unconstitutional. The

Court should therefore hold that the trade deficit tariffs the president levied in Executive Order 14,257 are

unlawful.

ARGUMENT

I. IEEPA Does Not Authorize Tariffs to Address Trade Deficits.

A. IEEPA’s Text Demonstrates that it

Does Not Authorize Tariffs to Address Trade Deficits.

The Constitution vests the power to levy tariffs in

Congress, not the executive branch. U.S. Const., art.

1, sec. 8, cl. 1 (“The Congress shall have Power To lay

and collect Taxes, Duties, Imposts and Excises”). Congress has not delegated that power to the president

with respect to the trade deficit tariffs.

4

The International Emergency Economic Powers Act

(“IEEPA”) does not authorize the president to impose

the worldwide and “reciprocal” tariffs because trade

imbalances are not an “unusual and extraordinary

threat.” A persistent trade deficit that has lasted for a

half a century is a routine and ordinary circumstance,

the exact opposite of the “unusual and extraordinary

threat” that the statute requires. Accordingly, the

challenged tariffs exceed the president’s power under

IEEPA.

Congress carefully calibrated the statutory scheme

to limit the exercise of the president’s delegated powers to narrow circumstances. Section 1701 provides

that the president may exercise powers under IEEPA

only “to deal with any unusual and extraordinary

threat, which has its source in whole or substantial

part outside the United States, to the national security, foreign policy, or economy of the United States, if

the President declares a national emergency with respect to such threat.” 50 U.S.C. § 1701(a). Congress

spoke clearly that the “authorities granted to the President” in IEEPA “may only be exercised to deal with

an unusual and extraordinary threat with respect to

which a national emergency has been declared for purposes of this chapter and may not be exercised for any

other purpose.” Id. § 1701(b) (emphasis added). Accordingly, if the statutory prerequisite in Section 1701

is not satisfied, then the president may not exercise

any of IEEPA’s powers in Section 1702.

The statutory requirement of an “unusual and extraordinary threat” demands rare and exceptional circumstances. The common meaning of “unusual” is

“[n]ot usual” “rare,” “exceptional,” or “remarkable.”

Unusual, NEW WEBSTER’S DICTIONARY OF THE ENGLISH LANGUAGE 1698 (1975); see also Unusual THE

5

CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH

1277 (6th ed. 1976). Similarly, “extraordinary” means

“[b]eyond an ordinary, common, usual, or customary

order, method, or course; exceeding a common degree

or measure; exceptional.” Extraordinary, NEW WEBSTER’S DICTIONARY OF THE ENGLISH LANGUAGE 548

(1975); see also Extraordinary, THE CONCISE OXFORD

DICTIONARY OF CURRENT ENGLISH 368 (6th ed. 1976)

(“[o]ut of the usual course” or “[e]xceptional, surprising; unusually great”).

Consistent with that common meaning, IEEPA

grants powers that the president may exercise only in

strictly limited circumstances. Congress enacted

IEEPA to constrain the powers it had previously

granted in the Trading with the Enemy Act of 1917

(“TWEA”), which it reformed because the TWEA was

“essentially an unlimited grant of authority . . . in both

the domestic and international economic arena” whenever there was an “unterminated declaration of national emergency on the books.” H. Rep. No. 95-459 at

7 (1977). IEEPA was therefore intended to “redefine

the power of the President to regulate international

economic transactions in future times of war or national emergency.” Id. at 1. Congress recognized that

the exercise of the powers granted by the statute

should be limited to genuine and exceptional emergencies. As the committee report explained, “emergencies

are by their nature rare and brief, and are not to be

equated with normal, ongoing problems.” Id. at 10. It

further emphasized that “[a] national emergency

should be declared and emergency authorities employed only with respect to a specific set of circumstances which constitute a real emergency, and for no

other purpose . . . . A state of national emergency

should not be a normal state of affairs.” Id.

6

This Court’s cases confirm that common meaning.

Interpreting the statutory phrase “extraordinary

emergency,” the Court explained that “[i]t is a special

occurrence, and the phrase used emphasizes this. It is

not an emergency simply which is expressed by it,

something merely sudden and unexpected, but an extraordinary one, -one exceeding the common degree.

We must assume that the phrase was used with a consciousness of its meaning and with the intention of

conveying such meaning... The phrase ‘continuing extraordinary emergency’ is self-contradictory.” United

States v. Garbish, 222 U.S. 257, 261 (1911) (cleaned

up). See also Menominee Indian Tribe of Wisconsin v.

United States, 577 U.S. 250, 258 (2016) (holding “common . . . circumstances” including a litigant’s financial

condition are “far from extraordinary”).

B. The Structure of the Statutory

Scheme Confirms that IEEPA Does

Not Authorize Tariffs to Address

Trade Deficits.

The structure of the comprehensive statutory

scheme of which IEEPA is a part confirms that it does

not authorize the president to impose tariffs to respond to trade deficits. IEEPA was one of several statutes that Congress enacted in the mid-1970s to reform

the TWEA. See Regan v. Wald, 468 U.S. 222, 227-28

(1984). These reforms responded to President Nixon’s

imposition of a 10% tariff to address a balance-of-payments deficit. See H.R. Rep. No. 95-459, at 5 (1977);

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

560 (C.C.P.A. 1975).

In response to what Congress recognized to be an

excessive grant of emergency powers in the unreformed TWEA, it enacted three pieces of legislation

relevant to the trade deficit tariffs at issue here. First,

7

it “amended [the TWEA] to limit the President’s power

to act pursuant to that statute solely to times of war.”

Regan, 468 U.S. 222 at 227 (citing Title I, § 101, of

Pub. L. 95–223, 91 Stat. 1625). Second, it enacted the

Section 122 of the Trade Act of 1974, which explicitly

authorizes the president to impose emergency import

surcharges in response to a balance-of-payments deficit, subject to a hard cap of 15% and a strict limit of

150 days on the tariff’s duration. See Trade Act of

1974, Pub. L. No. 93-618, § 122, 88 Stat. 1978, 1991

(codified at 19 U.S.C. § 2132).3 Third, it enacted

IEEPA, which did not include a strict limit on the size

or duration of the actions the president takes under

its authority but did limit the availability of that authority to “unusual and extraordinary threat[s].”

These three enactments together yield a coherent

and comprehensive statutory scheme. Congress first

limited the TWEA’s extensive powers to wartime. It

then bifurcated the president’s peacetime emergency

powers into two categories. The Trade Act of 1974, including its hard cap on the magnitude of tariffs and

strict limit on their duration, is the exclusive statutory

basis for a president’s emergency power to impose tariffs to address a balance-of-payments deficit. IEEPA,

in turn, grants emergency powers that lack the limits

in the Trading Act and authorizes the exercise of those

powers to address “unusual and extraordinary

threats” apart from balance-of-payments deficits.

This comprehensive statutory scheme is eminently

sensible. Because trade imbalances are a chronic phenomenon and tariffs are a blunt tool, Congress

3 Trade deficits are, by definition, a species of balance-of-pay-

ments deficit. JA 180a (“Trade deficits are one of the key balanceof-payment deficits and can be directly impacted by mechanisms

such as import quotas and tariffs, as authorized by Section 122.”).

8

curtailed the president’s authority to respond to trade

deficits with tariffs by limiting the magnitude and duration of those tariffs. Those limitations ensure that

Congress, rather than the president, retains the ultimate authority to prescribe legislative solutions to

this quintessential economic problem that falls

squarely within Congress’s competency. By contrast,

Congress determined that the president needed more

latitude to address genuinely exceptional crises aside

from trade deficits. The government’s unwarranted

interpretation of IEEPA would instead permit the

president to evade the Trading Act’s important limitations. See Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“It is a

fundamental canon of statutory construction that the

words of a statute must be read in their context and

with a view to their place in the overall statutory

scheme.”) (cleaned up). This statutory structure thus

demonstrates that trade deficits are not an “unusual

and extraordinary threat” under IEEPA.

C. Historical Practice Comports With

this Properly Circumscribed Statutory Interpretation of the President’s Authority Under IEEPA.

The history of presidential practice under IEEPA

further confirms that the statute does not authorize

the president to impose tariffs to address trade imbalances. No prior president has relied on IEEPA to do

so, even though the United States has run persistent

trade deficits every year since the statute’s enactment

in 1977. See Council on Foreign Relations, The U.S.

Trade Deficit: How Much Does It Matter? (Last updated April 23, 2025, 11:44 am (EST)), available at

https://www.cfr.org/backgrounder/us-trade-deficithow-much-does-it-matter. Consistent with the

9

statutory text and structure, prior presidents have instead consistently invoked IEEPA’s emergency powers solely to address acute foreign policy and national

security crises, not longstanding global economic patterns.

President Carter first invoked IEEPA to impose

sanctions on Iran in response to the Iranian hostage

crisis. See E.O. 12,170, Blocking Iranian Government

Property (November 14, 1979). Subsequent invocations of IEEPA were similarly targeted and tailored.

For example, in 1985, President Reagan prohibited

imports and exports with Nicaragua in response to the

Sandinista government’s support of terrorism and human rights violations. See E.O. 12,513, Prohibiting

Trade and Certain Other Transactions Involving Nicaragua (May 1, 1985). In 1986, President Reagan imposed sanctions on Libya in response to its terrorist

attacks in Europe the preceding month. See E.O.

12,543, Prohibiting Trade and Certain Transactions

Involving Libya (Jan. 7, 1986). In 1991, President

George H.W. Bush imposed sanctions on Haiti in response to a coup against the democratically elected

government. See E.O. 12,775, Prohibiting Certain

Transactions with Respect to Haiti (Oct. 4, 1991).

The unbroken practice of narrowly targeted exercises of the president’s powers under IEEPA continued during the first Trump administration. See, e.g.,

E.O. 13,959, Addressing the Threat from Securities

Investments that Finance Chinese Military Companies (Nov. 12, 2020) (targeting 31 listed Chinese companies); E.O. 13,894, Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Syria (Oct. 17, 2019); E.O. 13,882, Blocking

Property and Suspending Entry of Certain Persons

Contributing to the Situation in Mali (July 26, 2019);

10

E.O. 13,851, Blocking Property of Certain Persons

Contributing to the Situation in Nicaragua (Nov. 27,

2018); E.O. 13,818, Blocking the Property of Persons

Involved in Serious Human Rights Abuse or Corruption (Dec. 20, 2017).

Almost every executive order invoking IEEPA has

targeted a specifically named country, entity, or individual. See Congressional Research Service, The International Emergency Economic Powers Act: Origins,

Evolution, and Use, App’x A (Jan. 30, 2024) (cataloging every IEEPA use from its enactment through January of 2024). The few executive orders that did not

explicitly name its narrow target instead delegated to

a senior administration official the task of identifying

the specific targets to which the sanctions would apply. See, e.g., E.O. 12,938, Proliferation of Weapons of

Mass Destruction (Nov. 14, 1994) (directing Secretaries of State and Commerce to identify specific “exports

. . . that either Secretary determines would assist a

country in acquiring the capability to develop, produce, stockpile, deliver, or use weapons of mass destruction or their means of delivery”); E.O. 12,735,

Chemical and Biological Weapons Proliferation (Nov.

16, 1990) (directing Secretaries of State and Commerce to identify specific “exports that either Secretary determines would assist a country in acquiring

the capability to develop, produce, stockpile, deliver,

or use chemical or biological weapons”).

No prior president has used IEEPA indiscriminately

against the entire world to address systemic economic

conditions. Instead, they restrained their use of emergency powers to narrow circumscribed instances of

genuine “unusual and extraordinary threat[s].” That

historical practice confirms that the trade deficit tariffs’ unprecedented scope and subject exceed the

11

president’s statutory authority. See Haig v. Agee, 453

U.S. 280, 298 (1981) (relying on “an unbroken line of

Executive Orders, regulations, instructions to consular officials, and notices to passport holders [by] the

President and the Department of State” to inform interpretation of Passport Act of 1926) (citations omitted). Cf. Dames & Moore, 453 U.S. 654, 686 (1981) (citing Youngstown Sheet and Tube Co. v. Sawyer, 343

U.S. 579, 610-11 (1952) (Frankfurter, J., concurring))

(upholding IEEPA on ground that “‘a systematic, unbroken, executive practice, long pursued to the

knowledge of the Congress and never before questioned . . . may be treated as a gloss on ‘Executive

Power’ vested in the President by §1 of Art. II.’”).

D. The Trade Deficit Tariffs Imposed

by Executive Order 14257 are Unlawful.

The unprecedented trade deficit tariffs at issue here

apply indefinitely to all imports of all products from

all countries. That assertion of vast emergency powers

under IEEPA is contrary to the statute that Congress

enacted.

Trade deficits are a routine and ordinary circumstance, not an unusual and extraordinary threat. They

are the rule, not the exception. As the executive order

imposing the trade deficit tariffs acknowledged, trade

deficits have persisted in the United States for over

five decades. See Executive 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. 7, 2025) (recounting decades of

trade imbalances creating “structural asymmetries

[that] have driven the large and persistent annual

U.S. goods trade deficit”). Nor have trade deficits

12

grown in recent years; they have remained essentially

unchanged for decades. From 2008 until 2024, the

trade deficit in goods and services averaged 3.1% of

GDP. The trade deficit in goods and services for 2024

was an identical 3.1%. Indeed, the trade deficit has decreased by almost half from its modern peak of 5.67%

of GDP in 2005 and 5.69% of GDP in 2006. And contrary to the executive order’s claims, the trade deficit

in goods alone has remained similarly steady: 5.4% of

GDP in 2006, 4.18% of GDP in 2014, 4.13% of GDP in

2017, 4.02% of GDP in 2019, 4.5% of GDP in 2022, and

4.15% of GDP in 2024. See generally Bureau of Econ.

Research, available at https://www.bea.gov/ (collecting historical data) (last visited October 24, 2025).

This remarkably consistent and persistent phenomenon cannot qualify as an “unusual and extraordinary

threat.”

Moreover, the tariffs at issue here are wholly unbounded in duration and in geographical scope. The

government anticipates that the tariffs—and thus the

trade deficits they aim to address—will persist for at

least a decade, raising “trillions and trillions of dollars” in revenue. Donald Trump, Remarks by the President on Reciprocal Tariffs in the Rose Garden, White

House, Washington, D.C. (Apr. 2, 2025), available at

https://rollcall.com/factbase/trump/transcript/donaldtrump-speech-economic-tariffs-rose-garden-april-22025/. See also Chris Isadore, Trump aide says tariffs

will raise $6 trillion, which would be largest tax hike

in US history, CNN (Mar. 31, 2025), available at

https://www.cnn.com/2025/03/31/economy/tariffslargest-tax-hike/index.html. And the problem the

trade deficit tariffs purport to address are universal,

as is the purported solution the executive order imposes. The order imposes a 10% tariff worldwide, and

13

it imposes higher tariffs of up to 50% on dozens of individual countries. See E.O. 14,257. A problem that

persists everywhere forever simply cannot count as either unusual or extraordinary.

Accordingly, the longstanding phenomenon of trade

deficits are not an “unusual and extraordinary threat”

under Section 1701 and thus the president is not authorized to exercise any of the powers in Section 1702.

The trade deficit tariffs imposed by Executive Order

14,257 are therefore unlawful.

II. Even if Section 1701 Were Ambiguous, the

Court Must Interpret It Not to Authorize

the Trade Deficit Tariffs.

The text of Section 1701 is unambiguous: the “unusual and extraordinary threat[s]” which IEEPA authorizes the president to address do not include trade

deficits. “[W]here, as here, the statute’s language is

plain, ‘the sole function of the courts is to enforce it

according to its terms.’” United States v. Ron Pair Enters., Inc., 489 U.S. 235 (1989) (quoting Caminetti v.

United States, 242 U.S. 470, 485 (1917)); Connecticut

Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)

(“When the words of a statute are unambiguous, . . .

‘judicial inquiry is complete.’”) (quoting Rubin v.

United States, 449 U.S. 424, 430 (1981)). But even if

Section 1701 were ambiguous as to whether trade deficits—a global phenomenon that has persisted for decades—constitutes an “unusual and extraordinary

threat,” the Court must resolve that ambiguity

against the government for two reasons.

14

A. The Major Questions Doctrine Requires a Clear Congressional Authorization to Impose the Trade Deficit Tariffs That IEEPA Lacks.

First, the government’s unprecedented usurpation

of Congress’s power to levy and collect tariffs presents

a “major question” that requires clear text delegating

that power to the executive that is lacking here. This

Court has made clear that when the executive asserts

the authority to resolve a question of “staggering . . .

economic and political significance,” it “require[s] the

[executive] to point to clear congressional authorization to justify the challenged program.” Biden v. Nebraska, 600 U.S. 477, 494, 506 (2023). The Court in

Biden rejected the executive’s attempt to cancel student loans pursuant to a statute authorizing it to

“waive or modify any statutory or regulatory provision

applicable to the student financial assistance programs . . . as the Secretary deems necessary in connection with a war or other military operation or national

emergency.” Id. at 485 (quoting 20 U.S.C.

§ 1098bb(a)(1)). The trade deficit tariffs exceed the significance and impact of the loan cancelation program

at issue in Biden, and thus the requirement of a clear

congressional authorization applies with at least as

much force.

There, as here, the executive “has never previously

claimed powers of this magnitude under the [statute],”

as “past waivers and modifications issued under the

Act have been extremely modest and narrow in scope.”

Id. at 501. There, as here, the executive asserted authority to make a decision affecting hundreds of billions of dollars. Id. (“[T]he Secretary of Education

claims the authority, on his own, to release 43 million

borrowers from their obligations to repay $430 billion

15

in student loans.”). Indeed, in Biden a “budget model

issued by the Wharton School of the University of

Pennsylvania estimates that the program will cost

taxpayers ‘between $469 billion and $519 billion.’” Id.

at 502. Here, Wharton’s budget model estimates that

the impact will be trillions, far more than the amount

this Court considered in Biden to be of unprecedented

magnitude. See Lysle Boller, Kody Cramody, et. al,

The Economic Effects of President Trump’s Tariffs,

The Wharton School of Business (Apr. 10, 2025), available at https://budgetmodel.wharton.upenn.edu/issues/2025/4/10/economic-effects-of- president-trumpstariffs (“[W]e project that tariffs will raise $5.2 trillion

in new revenue over the next 10 years. . . . Over the

next 30 years, tariffs are expected to raise revenues of

$16.4 trillion.”). There, the program impacted “practically every student borrower.” Biden, 600 U.S. at 502.

Here, the trade deficit tariffs will impact essentially

every American.

There can be no question that, to an even greater

extent than with the student loan cancellation program that the Supreme Court rejected in Biden, in issuing the trade deficit tariffs the president “claims the

authority to exercise control over ‘a significant portion

of the American economy.’” Biden, 600 U.S. at 503

(quoting Utility Air Regulatory Group v. EPA, 573

U.S. 302, 324 (2014)). See also Alabama Association of

Realtors v. Department of Health & Human Services,

594 U.S. 758, 764 (2021) (per curiam) (holding power

to impose “$50 billion in . . . economic impact” was “exactly the kind of power” “of vast economic and political

significance” for which it “expect[s] Congress to speak

clearly”) (internal quotation marks omitted). The

Court in Biden explained that a “‘decision of such magnitude and consequence’ on a matter of ‘earnest and

16

profound debate across the country’ must ‘rest with

Congress itself, or an agency acting pursuant to a

clear delegation’” from Congress. 600 U.S. at 504 (emphasis added). See also W. Virginia v. Env’t Prot.

Agency, 597 U.S. 697, 730 (2022) (“Even if Congress

has delegated an agency general rulemaking or adjudicatory power, judges presume that Congress does

not delegate its authority to settle or amend major social and economic policy decisions.”) (citation omitted).

Like the student loan cancellation program at issue in

Biden, the trade deficit tariffs depend on an “assertion

of administrative authority [that] has ‘conveniently

enabled [the executive] to enact a program’ that Congress has chosen not to enact itself.” 600 U.S. at 503

(quoting West Virginia, 597 U.S. at 701-702). And like

the statute at issue in Biden, IEEPA “provides no authorization for the [executive’s] plan even when examined using the ordinary tools of statutory interpretation—let alone ‘clear congressional authorization’ for

such a program” that the Supreme Court’s cases require. Id. at 506.

B. The Cannon of Constitutional

Avoidance Requires the Court to

Interpret Section 1701 to Avoid

Grave Non-Delegation Concerns.

Even if IEEPA could be read to authorize the president to impose the trade deficit tariffs, such a delegation of that power would present a significant constitutional question. The Constitution gives Congress

the exclusive power to levy tariffs. U.S. CONST., Art. I,

sec. 8. The government’s interpretation would delegate that power entirely to the executive without a

hint of an “intelligible principle” to constrain its exercise. Fed. Commc’ns Comm’n v. Consumers’ Rsch., 145

S.Ct. 2482, 2497 (2025) (quoting J. W. Hampton, Jr.,

17

& Co. v. United States, 276 U.S. 394, 409 (1928)). See

also Mistretta v. United States, 488 U.S. 361, 372

(1989). To identify the “requisite intelligible principle,” the Court “assesse[s] whether Congress has

made clear both ‘the general policy’ that the agency

must pursue and ‘the boundaries of [its] delegated authority’” to ensure that “Congress has provided sufficient standards to enable both ‘the courts and the public [to] ascertain whether the agency’ has followed the

law.” Id. (quoting American Power & Light Co. v. SEC,

329 U.S. 90, 105 (1946) and OPP Cotton Mills, Inc. v.

Administrator of Wage and Hour Div., Dept. of Labor,

312 U.S. 126 (1941)).

Under the government’s interpretation of IEEPA,

the statute offers neither a general policy for the president to pursue in imposing tariffs, nor any boundaries

on the circumstances in which he may do so. If trade

deficits with every country in the world that have persisted for decades count as an “unusual and extraordinary threat,” then it is difficult to imagine an economic circumstance that falls outside the scope of the

statute’s delegated authority. That limitless discretion to levy tariffs in whatever circumstances the president sees fit would constitute a wholesale delegation

a core constitutional power belonging to Congress that

is impermissible under the Supreme Court’s cases. See

Consumers’ Consumers’ Rsch., 145 S.Ct. at 2514 (Kavanaugh, J., concurring) (“Congress likewise cannot

merely assign the President to take over the legislative role as to a particular subject matter. Rather, the

Court has said, any congressional grant of authority

must supply some guidance to the President—otherwise the President would no longer be exercising ‘executive Power’ when implementing legislation.”) (citing A.L.A. Schechter Poultry Corp. v. United States,

18

295 U.S. 495, 537–542 (1935) and Panama Refining

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

Moreover, the Court has explained that “the degree

of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” Whitman v. Am. Trucking Assns., Inc., 531

U.S. 457, 475 (2001). “The ‘guidance’ needed is greater

. . . when an agency action will ‘affect the entire national economy’ than when it addresses a narrow,

technical issue (e.g., the definition of ‘country [grain]

elevators’).” Consumers’ Rsch., 145 S.Ct. at 2497. As

explained above, the trade deficit tariffs will “affect

the entire national economy” to an unprecedented degree. Accordingly, to comport with the Constitution’s

allocation of the power to levy tariffs to Congress rather than the president, a statute authorizing the

trade deficit tariffs must provide an unprecedented

degree of guidance that is plainly lacking in the government’s interpretation of IEEPA.

This Court’s cases confirm this conclusion. Last

Term, the Court rejected a challenge that the Federal

Communication Commission’s implementation of the

“universal-service contribution scheme violates the

Constitution’s nondelegation rule.” Consumers’ Rsch.,

145 S.Ct. at 2495. The detailed statutory guidance the

Court determined to be an intelligible principle in

Consumers’ Research contrasts sharply with the absence of any such principle in the government’s interpretation of IEPPA. Section 254 of the Telecommunications Act of 1996 “directs the FCC to collect the

amount that is ‘sufficient’ to support the universalservice programs Congress has told it to implement.”

Id. at 2501 (citing 47 U.S.C. §§ 254(b)(5), (d), (e)). That

“sufficiency” requirement directs the FCC to raise an

“amount of support that is adequate, but no greater

19

than necessary, to achieve the goals of the universal

service program.” Id. (quoting In re High-Cost Universal Serv. Support, 25 FCC Rcd. 4072, 4074 (2010)).

Section 254 further defines the contours of the universal service program the FCC’s raised funds must

be “sufficient” to support. It “makes clear whom the

program is intended to serve: those in rural and other

high-cost areas (with a special nod to rural hospitals),

low-income consumers, and schools and libraries.” Id.

at 2503 (citing 47 U.S.C. §§ 254(b)(3), (6), (h)(1)). In

deciding whether a service should be subsidized, the

FCC must consider whether it has “been subscribed to

by a substantial majority of residential customers.” 47

U.S.C. § 254(c)(1)(B). Moreover, the service must be

“essential to education, public health, or public

safety.” Id. § 254(c)(1)(A). The Court concluded that

“Congress has [thus] given appropriate guidance

about the nature and content of universal service,

[and] then that plus the ‘sufficiency’ ceiling will defeat

this challenge to the contribution system. For Congress will have provided intelligible principles to guide

the FCC as it raises funds.” Consumers’ Rsch., 145

S.Ct. at 2512. The carefully crafted statutory scheme

governing the universal service contribution system

thereby provides a specific policy to pursue and parameters for the executive’s pursuit of that policy that

the government’s interpretation of IEEPA falls far

short of providing.

In contrast to the provisions of the Telecommunications Act of 1996 at issue in Consumers’ Research, the

statutes this Court has struck down on non-delegation

grounds bear a striking similarity to the government’s

interpretation of IEEPA. In Panama Refining Co. v.

Ryan, 293 U.S. 388 (1935), the Court struck down Section 9(c) of the National Industrial Recovery Act,

20

which authorized (but did not require) the president

to prohibit the interstate transport of petroleum and

petroleum products produced or withdrawn in excess

of a state law limitation. Id. at 415. As the Court explained:

Section 9(c) does not state whether or in

what circumstances or under what conditions the President is to prohibit the transportation of the amount of petroleum or

petroleum products produced in excess of

the state’s permission. It establishes no

criterion to govern the President’s

course. . . . The Congress in section 9(c)

thus declares no policy as to the transportation of the excess production.

Id.

So too here. If the statutory constraint that the president may exercise IEEPA’s powers only to address an

“unusual and extraordinary threat” extend so far as to

include the pervasive and longstanding phenomenon

of trade deficits, then it is no constraint at all. The

statute so interpreted would “give[] to the President

an unlimited authority to determine the policy and to

lay down the prohibition, or not to lay it down, as he

may see fit.” Id. Because, under the government’s interpretation Section 1701, “Congress has declared no

policy, has established no standard, has laid down no

rule” and has set “no requirement, no definition of circumstances and conditions in which the [importation]

is to be allowed or prohibited,” such a statute would

constitute an impermissible delegation of Congress’s

legislative power to levy tariffs. Id. at 430. See also

Schechter Poultry, 295 U.S. at 521–522, 541–542

(striking down statute granting “virtually unfettered”

authority to president to approve “codes of fair

21

competition” for “trade and industry throughout the

country” with “few restrictions” and “no standards”

aside from “rehabilitat[ing], correct[ing,] and expand[ing]” economy).

The canon of constitutional avoidance requires the

Court to adopt a reasonable interpretation of a statute

rather than one that raises serious constitutional concerns. See, e.g., Jennings v. Rodriguez, 583 U.S. 281,

286 (2018) (“Under the constitutional-avoidance

canon, when statutory language is susceptible of multiple interpretations, a court may shun an interpretation that raises serious constitutional doubts and instead may adopt an alternative that avoids those problems.”). The government’s interpretation of Section

1701 at the very least poses a grave concern that

IEEPA unconstitutionally delegates Congress’s legislative power to levy tariffs. Accordingly, because interpretating Section 1701 to limit its scope to genuinely

rare and exceptional threats is reasonable, the Court

must adopt that construction.

CONCLUSION

The judgment below should be affirmed.

22

Respectfully submitted,

MARK LEMLEY

William H. Neukom

Professor of Law

STANFORD LAW SCHOOL

559 Nathan Abbott Way

Stanford, CA 94305

NORMAN L. EISEN

STEPHEN A. JONAS

JOSHUA G. KOLB

DEMOCRACY DEFENDERS

FUND

600 Pennsylvania Avenue

SE, Suite 15180

Washington, D.C. 20003

MATTHEW A. SELIGMAN

Counsel of Record

STRIS & MAHER LLP

17785 Center Court Dr N Suite

600

Cerritos, CA 90703

(213) 9956873-8178

mseligman@stris.com

Counsel for Amici Curiae

October 24, 2025

APPENDIX

1a

APPENDIX – LIST OF AMICI CURIAE

Institutional affiliations are included for identification purposes only.

Arne Carleson – Governor of Minnesota from 1991

to 1999 (R).

Donald B. Ayer – Deputy Attorney General in the

George H.W. Bush Administration from 1989 to

1990; Principal Deputy Solicitor General in the

Reagan Administration from 1986 to 1988;

United States Attorney for the Eastern District

of California from 1981 to 1986 in the Reagan

Administration.

Ty Cobb – Special Counsel to the President in the

Trump Administration from 2017 to 2018 and

Assistant U.S. Attorney for the District of Maryland from 1980 to 1986.

Tom Coleman – Assistant Attorney General of Missouri from 1969 to 1972; Missouri State Representative from 1973 to 76; Representative of the

6th Congressional District of Missouri from 1976

to 1993 (R).

Barbara Comstock - Representative of the 10th

Congressional District of Virginia from 2015 to

2019 (R).

2a

Mickey Edwards – Representative of the 5th Congressional District of Oklahoma from 1977 to

1993 (R).

John J. Farmer - New Jersey Attorney General

from 1999 to 2002 (R); Assistant U.S. Attorney

for the District of New Jersey from 1990 to 1994

(R).

Emile Frankel - Emil H. Frankel, Assistant Secretary of the U.S. Department of Transportation,

2002-2005.

John Giraudo – Attorney Advisor in the Department of Justice Office of Legal Counsel in the

Reagan Administration from 1986 to 1989.

James Kelly – Deputy Assistant Secretary, International Trade Administration, 1984 to 1988.

Phil Lacovara – Deputy Solicitor General in the

Nixon Administration from 1972 to 1973; Counsel to the Special Prosecutor, Watergate Special

Prosecutor’s Office in the Nixon Administration

from 1973 to 1974.

Mike Lofgren - Former Republican Congressional

Staffer

Richard Painter - S. Walter Richey Professor of

Corporate Law at the University of Minnesota

Law School and was formerly the Associate

3a

Counsel to the President where he served as the

chief White House ethics lawyer

Trevor Potter– Chairman of the Federal Election

Commission and Commissioner of the Federal

Election Commission from 1991 to 1995; General

Counsel to John McCain’s Presidential Campaign

from 2000 to 2008.

Sarah R. Wasserman Rajec - Professor of International Trade Law at William & Mary Law School.

Reid Ribble - Reid Ribble, Representative of the 8th

Congressional District of Wisconsin from 2015 to

2017 (R).

Paul Rosenzweig – Deputy Assistant Secretary for

Policy, Department of Homeland Security in the

George W. Bush Administration from 2005 to

2009.

Claudine Schneider – Representative of the 2nd

Congressional District of Rhode Island from

1981- 1991 (R).

Rina Shah – Geopolitical advisor and former delegate to the Republican National Convention.

Robert Shanks – Deputy Assistant Attorney General, Office of Legal Counsel in the Reagan Administration from 1981 to 1984.

4a

Christopher Shays – Representative for the 4th

Congressional District of Connecticut from 1987

to 2009 (R).

Jeff Timmer – The Lincoln Project.

Stanley A. Twardy, Jr. – United States Attorney

for the District of Connecticut from 1985 to 1991

and Chief of Staff to Connecticut Governor

Lowell P. Weicker, Jr from 1991 to 1993.

James T. Walsh - Representative of the 27th Congressional District of New York from 1989-2009

(R).

William F. Weld – Governor of Massachusetts from

1991 to 1997 (R); United States Assistant Attorney General for the Criminal Division from 1986

to 1988.; U.S. Attorney for the District of Massachusetts from 1981 to 1986.