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

No. 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.

(For continuation of caption, see inside cover.)

_______________________________

On Writ of Certiorari Before Judgment to the United

States Court of Appeals for the District of Columbia

Circuit and on Writ of Certiorari to the United

States Court of Appeals for the Federal Circuit

BRIEF OF EMILY LEY PAPER, INC., D/B/A SIMPLIFIED;

KILO BRAVA LLC; BAMBOLA LLC; ROKLAND LLC;

FIREDISC, INC.; THE GAME MANUFACTURERS ASSOC.;

AND THE NEW CIVIL LIBERTIES ALLIANCE

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

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

John J. Vecchione

Counsel of Record

Andrew J. Morris

Markham S. Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

4250 N. Fairfax Dr., Ste. 300

Arlington, VA 22203

Phone: (202) 869-5210

john.vecchione@ncla.legal

Counsel for Amici Curiae

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL.,

Petitioners,

v.

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

Respondents.

i

TABLE OF CONTENTS

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

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

SUMMARY OF THE ARGUMENT ........................... 4

ARGUMENT .............................................................. 6

I.

II.

THE COURT SHOULD HOLD THAT THE

INTERNATIONAL EMERGENCY ECONOMIC

POWERS ACT DOES NOT AUTHORIZE TARIFFS ...... 6

A.

IEEPA Does Not Contain the

Language the Constitution and Tariff

Statutes Use for Tariffs .............................. 6

B.

“Regulate” Does Not Mean “Tariff” .......... 15

JURISDICTION LIES IN THE DISTRICT COURT

UNDER IEEPA, NOT IN THE COURT OF

INTERNATIONAL TRADE BASED ON HTSUS

MODIFICATIONS OR THE EXECUTIVE ORDERS ..... 23

A.

Because Jurisdiction and Merits

Inquiries Overlap, this Court Should

Interpret IEEPA to Decide Jurisdiction... 23

B.

The Challengers’ Claims Arise out of

IEEPA, and Not out of the HTSUS

Modifications or the Executive Orders..... 25

1. This Action “Arises” Only out of IEEPA,

Not the Executive Orders or HTSUS

Modifications ......................................... 27

ii

2. The HTSUS Modifications and Executive

Orders Are Not “Laws of the United

States” in this Context .......................... 29

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

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Air Parcel Forwarding Co. v. United States,

515 F. Supp. 47 (Ct. Int’l Trade 1981) ................. 27

Bolivarian Republic of Venez. v. Helmerich & Payne

Int’l Drilling Co.,

581 U.S. 170 (2017) ............................................... 24

Brownback v. King,

592 U.S. 209 (2021) ............................................... 24

Christianson v. Colt Indus. Operating Corp.,

486 U.S. 800 (1988) ......................................... 27, 28

City of New York v. FCC,

486 U.S. 57 (1988) ................................................. 30

Corley v. United States,

556 U.S. 303 (2009) ................................................. 9

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) ................................................. 9

Exxon Mobil Corp. v. Allapattah Servs., Inc.,

545 U.S. 546 (2005) ............................................... 22

Feliciano v. Dep’t of Transp.,

145 S.Ct. 1284 (2025) ............................................ 16

Fischer v. United States,

603 U.S. 480 (2024) ............................................... 17

iv

Garland v. Aleman Gonzalez,

596 U.S. 543 (2022) ............................................... 24

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824)............................. 20, 21

Gonzales v. Oregon,

546 U.S. 243 (2006) ............................................... 18

Gully v. First Nat’l Bank,

299 U.S. 109 (1936) ......................................... 27, 28

INS v. Chadha,

462 U.S. 919 (1983) ......................................... 14, 15

K Mart Corp. v. Cartier, Inc.,

485 U.S. 176 (1988) ......................................... 24, 25

King v. Burwell,

576 U.S. 473 (2015) ................................................. 9

Lamie v. U.S. Trustee,

540 U.S. 526, 538 (2004) ......................................... 9

Learning Resources, Inc. v. Trump,

784 F. Supp. 3d 209 (D.D.C. 2025) .....5, 6, 7, 14, 16,

28, 29

Loper Bright Enters. v. Raimondo and Relentless,

Inc. v. Dep’t of Com.,

603 U.S. 369 (2024) ................................................. 9

M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819)................................. 4

Medellín v. Texas,

552 U.S. 491 (2008) ............................................... 30

v

Merrell Dow Pharms., Inc. v. Thompson,

478 U.S. 804 (1986) ............................................... 27

Michael Simon Design, Inc. v. United States,

609 F.3d 1335 (Fed. Cir. 2010) ............................. 24

Moore v. United States,

602 U.S. 572 (2024) ................................................. 5

Sprint Commc’ns, Inc. v. Jacobs,

571 U.S. 69 (2013) ................................................. 24

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ................................................. 23

The Conqueror,

166 U.S. 110 (1897) ............................................... 10

United States v. Heinszen,

206 U.S. 370 (1907) ......................................... 30, 31

United States v. Yoshida Int'l, Inc.,

526 F.2d 560 (C.C.P.A. 1975) ............................... 19

Util. Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ............................................... 10

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

149 F.4th 1312 (2025) ......................................... 5, 6

Whitman v. Am. Trucking Ass’ns,

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

Yates v. United States,

574 U.S. 528 (2015) ......................................... 17, 18

vi

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ............................................... 30

Statutes

19 U.S.C. § 1862(a)................................................... 12

19 U.S.C. § 2132 ....................................................... 14

19 U.S.C. § 2132(a)(3)(A) ......................................... 12

19 U.S.C. § 2252(e)(2)(A) ......................................... 13

19 U.S.C. § 2411 ....................................................... 14

19 U.S.C. § 2411(c)(1)(B) .......................................... 13

19 U.S.C. § 3004(c)(1)(C) .................................... 29, 30

28 U.S.C. § 1581(i)(1)(B) .......................................... 25

28 U.S.C. § 1581(i)(1)(D) ........................................ 25

50 U.S.C. § 1701(a)..................................................... 8

50 U.S.C. § 1702(a)(1)(B) ..........................8, 13, 17, 18

50 U.S.C. § 1706(b)................................................... 14

Anti-Smuggling Act of 1935, codified as amended at

19 U.S.C. §§ 1701, 1703-1706a, 1709-1711 .......... 19

International Emergency Economic Powers Act,

Pub. L. No. 95-223, Tit. II, 91 Stat. 1626 (1977) .. 4,

13, 15, 19

Pub. L. 99-93, § 801, 99 Stat. 405, 448 .................... 15

Reciprocal Trade Agreements Act,

Pub. L. No. 73-316, 48 Stat. 943 (1934) ............... 12

vii

Tariff Act of 1789,

ch.2, 1 Stat 24 ....................................................... 10

Tariff Act of 1790,

ch. 35, 1 Stat. 145.................................................. 11

Tariff Act of 1816,

ch. 107, 3 Stat. 189 or 310 .................................... 11

Tariff Act of 1828,

ch. 55, 4 Stat. 270.................................................. 11

Tariff Act of 1890,

ch. 1244, 26 Stat. 567............................................ 11

Tariff Act of 1930,

Pub. L. No. 71-361,46 Stat. 590............................ 12

Trade Act of 1974,

Pub. L. No. 93-618, 88 Stat. 1978 (1975) ....... 12, 13

Trade Expansion Act,

Pub. L. No. 87-794,76 Stat. 872, 877 (1962) ........ 12

Other Authorities

Daniel Webster,

Second Reply to Hayne, January 26 and 27, 1830,

in ROBERT C. BYRD, THE SENATE 1789-1989:

CLASSIC SPEECHES 1830-1993, VOL. 3 (1994) ....... 23

Eric R. Bolinder,

Seizing the Duty of Congress: The President’s

Unilateral Implementation of Tariffs is

Unconstitutional,

101 Ind. L.J. Supp. 1 (2025) ................................... 4

viii

Executive Orders,

The Am. Presidency Project (Oct. 15, 2025) ........ 27

Fin Daniel Gomez & Anne Bryson,

Trump Sets Executive Order Record in First 100

Days, CBS News (Apr. 29, 2025, 7:02 AM) .......... 27

H.R. Rep. No. 95-459 (1977) ................................... 20

Letter from James Madison to Joseph C. Cabell

(Sept. 18, 1828),

in 9 THE WRITINGS OF JAMES MADISON 316

(Gaillard Hunt ed. 1910)....................................... 23

Tom Campbell,

Presidential Authority to Impose Tariffs,

83 La. L. Rev. 595 (2023) ...................................... 15

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 1 ....................................... 16

U.S. Const. art. I, § 8, cl. 3 ....................................... 16

U.S. Const. art. I, § 9, cl. 5 ....................................... 17

1

INTEREST OF AMICI CURIAE 1

Amici curiae are small businesses grievously

harmed by the illegal tariffs imposed by the Executive

Branch, an association of such businesses, and the

New Civil Liberties Alliance, which represents these

amici in original litigation against the tariffs. They

include the Plaintiff in the first filed case in the

country against the tariffs, Emily Ley Paper, Inc.,

d/b/a Simplified v. Trump, No. 3:25-cv-464-TKWZCB (N.D. Fla. Apr. 3, 2025). Simplified and its coplaintiffs were transferred to the Court of

International Trade (“CIT”) under the theory that the

International Emergency Economic Powers Act

(“IEEPA”) is a tariff statute with exclusive

jurisdiction. The case is stayed there. FIREDISC, Inc.

and its co-plaintiffs filed a case in Texas that was

stayed when this Court granted certiorari in the

instant matters. FIREDISC, Inc. v. Trump, No. 1:25cv-011340DAE (W.D. Tex. July 21, 2025). Amici (or

their clients or members) have all have paid the

illegal tariffs and are poised to pay more. They

collectively import from Australia, Bangladesh,

China, Colombia, India, Italy, Morocco, the

Philippines, Taiwan and Turkey. Many have cut back

or delayed production. Unilateral tariff changes being

made at the whim of a single actor undermines the

ability of amici to make business plans for the future.

1 Pursuant to Rule 37.6, no party’s counsel authored any part of

this brief. No person or entity, other than amici curiae and

their counsel, paid for the brief’s preparation or submission.

2

Emily Ley Paper, Inc, d/b/a Simplified, is a

Florida corporation with its principal place of

business in Pensacola, Florida. It sells premium

planners,

organizational

tools,

and

home

management products.

Kilo Brava LLC is a Florida limited liability

company with its principal place of business in

Sarasota, Florida. It designs and sells luxury

loungewear, sleepwear, and swimwear.

Bambola LLC is a Florida limited liability

company with its principal place of business in

Sarasota, Florida. It sells luxury loungewear,

sleepwear, and swimwear.

Rokland LLC is a Florida limited liability

company with its principal place of business in

Gainesville, Florida. It designs and distributes

electronic products.

FIREDISC, Inc. is a Delaware corporation with

its principal place of business in Katy, Texas. It

manufactures and sells outdoor cooking products.

The Game Manufacturers Association (GAMA) is

a nonprofit trade organization representing the

vibrant and growing tabletop games industry in the

United States. With approximately 1,500 member

companies employing tens of thousands of workers—

including creators, publishers, manufacturers, and

retailers—GAMA champions their shared goal of

expanding access to and engagement with board and

card games in a $10 billion domestic market.

The New Civil Liberties Alliance (“NCLA”), which

represents amici in the underlying tariff lawsuits, is a

3

nonpartisan, nonprofit civil rights organization and

public-interest law firm devoted to defending

constitutional freedoms from the administrative state’s

depredations. Professor Philip Hamburger founded

NCLA to challenge multiple constitutional defects in the

modern administrative state through original litigation,

amicus curiae briefs, and other advocacy.

4

SUMMARY OF THE ARGUMENT

In a flurry of Executive Orders, the President

asserted the unprecedented authority to impose new

tariffs on any imports, from any country, in any

amount he chooses. The President has issued,

postponed, and rescinded Executive Orders raising or

lowering tariffs without notice, seemingly at whim.

These Executive Orders have upended the tariff

system that Congress designed and enacted over a

course of decades. He has dressed the Executive

Orders (the “Tariff Executive Orders”) in the guise of

an “emergency” by citing the International

Emergency Economic Powers Act, or “IEEPA,” Pub. L.

No. 95-223, Tit. II,91 Stat. 1626 (1977).

The President lacks the inherent authority to

raise tariffs unilaterally, and IEEPA does not give it

to him. Emergency or no, IEEPA does not authorize

tariffs—it has nothing to do with them. “An unlimited

power to tax involves, necessarily, a power to

destroy.” McCulloch v. Maryland, 17 U.S. (4 Wheat.)

316, 327 (1819). Congress did not in IEEPA confer

such vast destructive power in one man, divesting

itself of the power it has used longest of every power

existing in Article I of the Constitution. 2 Whatever

view of jurisdiction it takes, the Court should adopt

the pure textualist and originalist approach of Judge

See Eric R. Bolinder, Seizing the Duty of Congress: The

President’s

Unilateral

Implementation

of

Tariffs

Is

Unconstitutional, 101 Ind. L.J. Supp. 1, 10 (2025) (arguing the

Founders did not trust the tariff power to a unicameral

legislature, much less one man).

2

5

Contreras in Learning Resources, Inc. v. Trump, 784

F. Supp. 3d 209, 223-230 (D.D.C. 2025), and the

nearly in pari materia concurrence of the Federal

Circuit in V.O.S. Selections, Inc. v. Trump, 149 F.4th

1312, 1340-47 (2025), and put a stake through the

heart of this effort by the Executive Branch to

arrogate Legislative Branch powers unto itself.

The text of the statute and the rules of statutory

construction are so clear that this Court does not need

to address the nondelegation doctrine, nor even the

Major Questions Doctrine, to reject the Government’s

arguments. “Regulate” pellucidly does not mean “tax,”

“tariff,” “Impost” or “Duty.” But should the Court

invoke those doctrines, it would find additional

support to declare the Tariff Executive Orders and

follow-on changes to the tariff schedules unlawful.

As IEEPA is not a tariff statute, and the Learning

Resources Respondents had no claim “arising” from a

tariff statute, the district court had jurisdiction.

The Court should hold that jurisdiction lies in the

district court rather than the Court of International

Trade. It should affirm the district court’s judgment

on the grounds stated in that court’s opinion, 784 F.

Supp. 3d at 223-230, and remand to the district court

for nationwide relief as “duties, imposts, and excise

taxes” “must be uniform throughout the United

States.” See Moore v. United States, 602 U.S. 572, 583

(2024) (citing Art. 1, § 8, cl. 1). If the Court rules that

jurisdiction lies in the Court of International Trade, it

should affirm the Federal Circuit’s decision on the

grounds stated in the concurrence, 149 F.4th at 134047, and remand with the same universal relief order.

6

ARGUMENT

I.

THE COURT SHOULD HOLD THAT THE

INTERNATIONAL

EMERGENCY

ECONOMIC

POWERS ACT DOES NOT AUTHORIZE TARIFFS

A. IEEPA Does Not Contain the Language

the Constitution and Tariff Statutes

Use for Tariffs

Upon petitions for a writ of certiorari before

judgment by the Solicitor General and Learning

Resources, this Court took the extraordinary step of

granting those requests and addressing the question

of whether IEEPA allows the President to issue

ukases on tariffs. 3 Despite the fact that other tariff

cases are stayed across the country pending this

Court’s resolution of the issue, the Court already has

the benefit of the views of 15 jurists, 4 and all but four

have struck these tariffs as unlawful. The best

reading of the statutory text under its plain meaning

and this Court’s precedent is that IEEPA grants the

President no tariff authority at all. See Learning

Resources, 784 F. Supp. 3d at 230 (“[B]ecause IEEPA

does not authorize the President to impose tariffs, the

tariffs that derive from the Challenged Orders are

ultra vires.”); V.O.S. Selections, 149 F.4th at 1340

While V.O.S. Selections Inc. et al. are “Respondents” and

Learning Resources et al. are “Petitioners,” amici will refer to

them collectively as “Challengers.”

3

4 Three judges in the CIT, 11 at the Federal Circuit and Judge

Contreras of the U.S. District Court for the District of Columbia.

7

(Cunningham, J., concurring) (“While we agree with

the majority that [IEEPA] does not grant the

President authority to impose the type of tariffs

imposed by the Executive Orders, we write separately

to state our view that IEEPA does not authorize the

President to impose any tariffs.”) (citations omitted).

The District Court and the concurrence in the Federal

Circuit most closely follow the text of IEEPA and this

Court’s precedent and should guide the result here.

As the Challengers have ably described, IEEPA

was a successor to the Trading with the Enemy Act

(“TWEA”) and was passed to lessen Presidential

power in emergencies. Br. for Private Respondents at

28, No. 25-250; Br. for State Respondents at 5, No. 25250; Resp. Br. for Petitioner Learning Resources, Inc.

at 42-44, No. 24-1287. Critically, the very power the

Government asserts here was addressed by Congress

before passing IEEPA. It passed § 122 of the Trade

Act of 1974 in the wake of President Nixon’s actions.

Section 122 authorizes the President to respond to

balance-of-payments emergencies by imposing import

surcharges, which it limits to 15 percent and 150

days. 19 U.S.C. § 2132(a). See Learning Resources,

784 F.Supp. 3d at 229. Congress needed to do nothing

to ratify President Nixon’s surcharges if it really

thought that the TWEA language provides that

power. The Government’s argument is akin to

positing that because Congress ratified President

Lincoln’s prior suspension of habeas corpus upon

returning to session in the Civil War, it has already

approved any President’s subsequent suspension of

habeas corpus. See Habeus Corpus Suspension Act of

1863, ch. 81, 12 Stat. 755 (1863).

8

Having already addressed the imposition of

tariffs in response to balance-of-trade issues in 1975,

Congress turned to addressing what a President’s

emergency powers should be in IEEPA.

IEEPA authorizes the President to take certain

actions after declaring a national emergency because

of an “unusual and extraordinary threat, which has

its source in whole or substantial part outside the

United States.” 50 U.S.C. § 1701(a). The

subparagraph at issue here, 50 U.S.C. § 1702,

identifies the permitted actions. It authorizes the

President to “investigate, block during the pendency

of an investigation, regulate, direct and compel,

nullify, void, prevent or prohibit” certain transactions

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

It then identifies the categories of transactions

and property the authorized actions may address:

any acquisition, holding, withholding, use,

transfer, withdrawal, transportation, importation

or exportation of, or dealing in, or exercising any

right, power, or privilege with respect to, or

transactions involving, any property in which any

foreign country or a national thereof has any

interest by any person, or with respect to any

property, subject to the jurisdiction of the United

States.

Id.

Conspicuously absent from this detailed

paragraph is any reference to tariffs, imposts, duties

or taxes. That glaring absence should defeat the

President’s assertions that IEEPA authorizes tariffs,

9

because statutory silence cannot be construed as a

delegation of authority—as this Court very recently

emphasized. See Loper Bright Enters. v. Raimondo

and Relentless, Inc. v. Dep’t of Com., 603 U.S. 369, 400

(2024). The courts will also not read absent words into

a statute. Lamie v. U.S. Trustee, 540 U.S. 526, 538

(2004) (noting the canon against adding absent words

to a statute and stating, “With a plain, nonabsurd

meaning in view, we need not proceed in this way”).

In King v. Burwell, this Court explained “we must

read the words [of a statute] in their context and with

a view to their place in the overall statutory scheme

… . [A court’s] duty, after all, is to construe statutes,

not isolated provisions.” 576 U.S. 473, 486 (2015)

(cleaned up). Here the “overall statutory scheme”

must include Title 19 and its tariff delegations to the

President. Otherwise, the Court risks making all of

Title 19 superfluous, not just a portion of a statute.

See Corley v. United States, 556 U.S. 303, 314 (2009)

(“A statute should be construed so that effect is given

to all its provisions, so that no part will be inoperative

or superfluous, void or insignificant.” (cleaned up)).

Congress knows how to create a tariff statute and

has done it for hundreds of years now. From the very

first, Congress used certain specific language to

impose or authorize tariffs. Those detailed provisions

show that “when Congress wants to” allow the

President to impose duties, imposts or tariffs, “it

knows exactly how to do so.” Epic Sys. Corp. v. Lewis,

584 U.S. 497, 514 (2018) (Congress used specific

language in prior statutes addressing the same

subject matter).

10

IEEPA’s silence on tariffs contrasts with the

specific references to “tariffs” and “duties” Congress

has used in actual tariff statutes, showing that

Congress “speak[s] clearly” when it authorizes tariffs.

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

(2014). “By the very first act passed by [C]ongress in

1789, subsequent to an act for administering oaths to

its own members, a duty was laid upon ‘goods, wares

and merchandise,’ imported into the United States.”

The Conqueror, 166 U.S. 110, 118 (1897). This statute,

titled “An Act for laying a Duty on Goods, Wares, and

Merchandises imported into the United States,”

stated that “duties …. Shall be laid” on specified

items. Tariff Act of 1789, ch. 2, § 1, 1 Stat 24. There is

no older substantive action of Congress than issuing

tariff statutes. Congress knew how to do it in 1789,

and it did not lose that knowledge or ability in

subsequent centuries.

Since 1789, Congress has continued to write tariff

legislation using similar language, as the following

examples show.

Year Statute

1789

Text

“duties [shall] … be

Tariff Act of 1789, ch.

laid.”

2, 1 Stat 24 5

(Id. § 1.)

5 Repealed by the Tariff Act of Aug. 10, 1790, ch. 39, § 1, 1 Stat.

180.

11

Year Statute

Text

“duties … shall be

Tariff Act of 1790, ch.

1790

levied”

35, 1 Stat. 145, 180 6

(Id. § 1.)

Tariff Act of 1816, ch. “there shall be

levied … the

1816 107, 3 Stat. 189 or 310

following duties”

(Id.)

Tariff Act of 1828, ch.

“there shall be

55, 4 Stat. 270 7 (the

levied … the

1828 notorious Tariff of

following duties”

Abominations)

(Id.)

“there shall be

Tariff Act of 1890, ch. levied … the rates of

1890

1244, 26 Stat. 567 8

duty”

(Id.)

6 Amended by Tariff Act of 1824, ch. 136, 4 Stat. 25, and the

Tariff Act of 1828, ch. 55, 4 Stat. 270.

7 Repealed by the Tariff of 1832, ch. 227, 4 Stat. 583, and the

Compromise Tariff of 1833, ch. 55, 4 Stat. 629.

8 Superseded by the Wilson-Gorman Tariff Act of 1894, ch. 349,

28 Stat. 509.

12

Year Statute

Text

Tariff Act of 1930,

1930 Pub. L. No. 71-361,46

Stat. 590 9

”there shall be

levied … duties”

(Title I)

Reciprocal Trade

“the President … is

Agreements Act, Pub. authorized … to

1934

L. No. 73-316, 48 Stat. proclaim … duties”

943 (1934) 10

(Id.)

Trade Expansion

“Prohibition on

Act, Pub. L. No. 87decrease or

1962 794, § 232,76 Stat. 872, elimination of

877 (1962) (Amending duties”

Tariff Act of 1930)

(19 U.S.C. § 1862(a))

Trade Act of 1974,

Pub. L. No. 93-618,

1974

§ 122, 88 Stat. 1978,

1988 (1975) 11

“proclaim … import

surcharge … in the

form of duties”

(19 U.S.C.

§ 2132(a)(3)(A))

1974 Trade Act of 1974,

Pub. L. No. 93-618,

“authorized [to]

recommend … any

duty”

9 Codified as amended at 19 U.S.C. ch. 4 (e.g., at § 1202 et seq.).

10 Codified as amended at 19 U.S.C. § 1351(a)(1)(B).

11 Codified as amended at 19 U.S.C. § 2132.

13

Year Statute

§ 202, 88 Stat. 2013

(1975)12

Text

(19 U.S.C.

§ 2252(e)(2)(A))

“may … impose

Trade Act of 1974, Pub

duties”

1974 L. No. 93-618, § 301,

(19 U.S.C.

88 Stat. 2042 (1975) 13

§ 2411(c)(1)(B))

1977

IEEPA, 91 Stat.

1626. 14

“regulate ...

importation or

exportation of … any

property”

(50 U.S.C.

§ 1702(a)(1)(B))

But as the last row above shows, in contrast to the

tariff provisions found in Title 19 of the U.S. Code,

meaningfully titled “Customs Duties,” Congress did

nothing comparable to authorize tariffs in IEEPA. It

did not even put IEEPA in the tariff portion of the

U.S. Code. There is no reason at all the Congress that

passed IEEPA would not have used those well-known

and understood terms unless it did not want that

power delegated to the President under that statute.

12 Codified at 19 U.S.C. § 2252.

13 Codified at 19 U.S.C. § 2411.

14 Codified at 50 U.S.C. §§ 1701-1708.

14

The tariff laws also show that Congress has

delegated tariff authority to the President only in

discrete allocations, passing tariff statutes for

targeted purposes. For example, 19 U.S.C. § 2132

permits certain tariffs to address trade deficits and

§ 301 of the 1974 Trade Act authorizes certain tariffs

to address a country’s specific violation of a trade

agreement, 19 U.S.C. § 2411. The result is an

integrated web of tariff statutes located in Title 19.

Also, in every statute granting tariff authority,

Congress imposed procedural and other limits. See

examples collected in Learning Resources, 784 F.

Supp. 3d at 224-225. These statutes generally require

fact-finding and other procedures by an agency such

as the U.S. Trade Representative, the International

Trade Commission, or the Department of Commerce.

For examples of typical requirements in key tariff

statutes, see Tom Campbell, Presidential Authority to

Impose Tariffs, 83 La. L. Rev. 595, 614-16 (2023)

(arguing IEEPA does not authorize tariffs).

Another reason the Court should interpret IEEPA

under its ordinary and plain reading and refrain from

the adventurism that the Government would invite is

that the statute was implemented in 1977. It is

replete with safeguards against Presidential

overreach that rely on the “legislative veto.” See 50

U.S.C. § 1706(b) (Congressional concurrent resolution

can terminate an emergency declared under the

National Emergencies Act). This Court struck down

the legislative veto after this statute was enacted.

INS v. Chadha, 462 U.S. 919, 957-58 (1983)

(requiring bicameral presentment and overriding

Presidential veto and ruling a “legislative veto”

15

unconstitutional). 15 Given that some of the

protections against executive overreach that

Congress placed in the legislation have been stripped

from it by subsequent judicial interpretation, an

expansive reading of the statute is particularly

dangerous and violative of separation of powers.

B. “Regulate” Does Not Mean “Tariff”

The fragile linchpin of the Government’s main

argument that IEEPA allows the President to

impose tariffs is the presence in § 1702(a)(1)(B) of

the word “regulate” separated by many words but

made closer by ellipses, and “importation.” See, e.g.,

Pet. Br. at 31; see, e.g., Brief for Prof. Chad Squitieri

as Amicus Curiae Supporting Respondents in No.

24-1287 and Petitioners in No. 25-250 at 21, Nos. 241287 & 25-250 (2025). The Government argues that

these words “clearly” authorize the President to

impose tariffs. Pet. Br. at 23. Not so.

Under IEEPA, Congress originally reserved the right to

terminate presidential national emergency declarations without

presentment by concurrent resolution. § 207, 91 Stat. at 1628

(codified at 50 U.S.C. § 1706(b)). This provision became

problematic after the Supreme Court held that legislative

functions, such as legislative vetoes of executive authority, must

follow the constitutional requirements of bicameralism and

presentment. Chadha, 462 U.S. at 954-55. In response, Congress

amended its veto provision to require joint resolution which

provides for bicameralism and presentment before it revokes

authority already delegated to the President. Pub. L. 99-93,

§ 801, 99 Stat. 405, 448 (codified at 50 U.S.C. § 1622(c)).

15

16

The Constitution erects the first formidable

obstacle to this interpretation. It distinguishes

between taxing and regulating, assigning those

powers in separate clauses. The Taxing Clause,

referring to tariffs as “imposts,” assigns the “Power To

lay and collect Taxes, Duties, Imposts and Excises.”

U.S. Const. art. I, § 8, cl. 1. The Commerce Clause

assigns Congress the “Power … To regulate

Commerce with foreign Nations.” Id. cl. 3. If the

power to “regulate” included the power to lay duties

or imposts, the entire Taxing Clause would be

surplusage. See Feliciano v. Dep’t of Transp., 145

S.Ct. 1284, 1294 (2025) (applying canon against

surplusage to reject government’s reading of statute).

Longstanding Congressional usage reflects this

distinction. As the above historical table

demonstrates, see supra at 10-13, Congress has used

specific language since the Founding to impose or

authorize tariffs, and has never used “regulate” to

order or authorize tariffs. Here the practice of

Congress from the very first to the present is to

carefully delineate when it is imposing or authorizing

tariffs.

Across this long history, the Government cannot

identify a single statute in which Congress has used

“regulate” to delegate authority to impose any kind of

tax, much less a tariff. Indeed, that novel reading of

“regulate” would create several unsolvable conflicts in

IEEPA.

The Government’s reading of “regulate” would

render IEEPA unconstitutional, as Learning

Resources explained. 784 F. Supp. 3d at 227.

17

“[R]egulate” applies to “importation or exportation,”

§ 1702(a)(1)(B), but the Constitution prohibits taxes

on exports. See U.S. Const. art. I, § 9, cl. 5 (“No Tax or

Duty shall be laid on Articles exported from any

State.”).

Reading “regulate” in context with its neighboring

verbs, as the canon of noscitur a sociis requires,

confirms this conclusion. It “teaches that a word is

“given more precise content by the neighboring words

with which it is associated.” Fischer v. United States,

603 U.S. 480, 487-488 (2024). Yates v. United States,

574 U.S. 528 (2015), illustrates the point. There the

Court said

The

words

immediately

surrounding

“tangible object” in [Sarbanes-Oxley Act

§ 802, 18 U.S.C.] § 1519—“falsifies, or makes

a false entry in any record [or] document”—

also cabin the contextual meaning of that

term. As explained in Gustafson v. Alloyd

Co., 513 U.S. 561 (1995), we rely on the

principle of noscitur a sociis—a word is known

by the company it keeps—to “avoid ascribing

to one word a meaning so broad that it is

inconsistent with its accompanying words,

thus giving unintended breadth to the Acts of

Congress.” Id. at 575 (internal quotation

marks omitted).

Id. at 543.

This canon weighs squarely against the

imposition of duties under the statute. In IEEPA, the

words immediately surrounding “regulate” describe

18

authorized actions that relate to economic sanctions:

“investigate, block … direct and compel, nullify, void,

prevent or prohibit.” 50 U.S.C. § 1702(a)(1)(B). These

neighboring words “cabin the contextual meaning,”

Yates, 574 U.S. at 543, of “regulate” to the same

meaning reflected in the Constitution, which does not

include the power to tax. This list of steps IEEPA

authorizes the President to take in “emergencies” is

long and detailed but does not include any indication

of collecting revenue domestically from Americans

through a tariff. And these terms are nothing like

“impost, duty or tariff.” This approach to statutory

interpretation tracks the commonsense intuition that

Congress would not ordinarily introduce a general

term that renders meaningless the specific text

accompanying it. The IEEPA Congress had no notion

of using “regulate” in the sense the Government and

its amici press upon the Court.

Nor would Congress make such a major grant of

tariff authority by tucking a general term into a list

of authorized actions, all relating to sanctions.

Congress does not grant “broad and unusual

authority through implicit delegation,” Gonzales v.

Oregon, 546 U.S. 243, 267 (2006), and it does not “hide

elephants in mouseholes,” Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 468 (2001).

In an emergency the President may prevent or

seize goods or ships coming from hostile countries, but

there is no cause to tariff them. Tariffing is different

in kind from “investigating,” “prohibiting,” “blocking,”

or any of the other words in IEEPA. Should hostile

intent be demonstrated by a foreign power the

President may want to prohibit a harmful good from

19

coming into the United States but there is no warrant

for taxing Americans to do so. In the present case, the

fentanyl duties on China, Mexico, and Canada, are a

good example. If such things are coming into the

country why would we only want to tax their entry

rather than prohibit it? Even there, Title 19 allows an

alternative. See Anti-Smuggling Act of 1935, codified

as amended at 19 U.S.C. §§ 1701, 1703-1706a, 17091711.

Not only the language Congress chose but the

legislative history supports this conclusion. After

giving the President the power to address balance-ofpayments emergencies, Congress enacted IEEPA two

years later, 91 Stat. 1626, adopting language from

TWEA in 50 U.S.C. § 1702(a)(1)(B). Legislative

history demonstrates Congress understood that this

language did not authorize tariffs. The House Report

set out an exhaustive description of the powers

IEEPA would grant the President but did not refer to

tariffs or anything like them. H.R. Rep. No. 95-459,

at 2 (1977). This omission powerfully rebuts the

assertion that Congress understood IEEPA to

authorize tariffs. The House Report also criticized

the Nixon tariff as unauthorized by TWEA. Id. at 5

(describing tariff). Referring to the Nixon tariff and

other presidential acts, the Report complained that

TWEA had “become essentially an unlimited grant of

authority for the President to exercise, at his

discretion,” id. at 7. Nor does United States v. Yoshida

International, Inc., 526 F.2d 560 (C.C.P.A. 1975),

indicate Congress understood that the language

IEEPA adopted from TWEA authorized tariffs.

20

Learning Resources ably explains why in its merits

brief. Learning Resources Br. at 41-43.

Gibbons v. Ogden does not relate at all to IEEPA,

nor does it suggest that “regulate” includes the power

to impose taxes or tariffs, as the Government

contends. Pet. Br. 29. Gibbons v. Ogden, 22 U.S. (9

Wheat.) 1 (1824). 16 Gibbons concerns the national

power to regulate commerce. It is not about the

President’s ability to exercise tariff power. Chief

Justice Marshall noted that the power to regulate was

“entirely distinct from the right to levy taxes and

imposts.” Id. at 201.

Chief Justice Marshall emphasized, it is “very

clear, that” imposing duties is “a branch of the taxing

power.” Id. at 201 (citing U.S. Const. art. I, § 8, cl. 1).

“In a separate clause of the enumeration, the power

to regulate commerce is given, as being entirely

distinct from the right to levy taxes and imposts.” Id.

The Court notes these two powers are “distinct from

each other.” Id.

Chief Justice Marshall for the Court was

interpreting the words “Congress shall have power to

regulate commerce with foreign nations, and among

the several States, and with the Indian tribes.” Id. at

189. When construing those words, the Court used a

method of construction that if followed here would be

fatal to the Government. In describing the word

“commerce” it said:

16 Which Daniel Webster argued.

21

If this be the admitted meaning of the word,

in its application to foreign nations, it must

carry the same meaning throughout the

sentence, and remain a unit, unless there be

some plain intelligible cause which alters it.

Id. at 194.

That same analysis is fatal to the idea that

“regulate” means something different within the

same sentence of IEEPA. The Court also

acknowledged that a duty might be for the purposes

of regulation or revenue. Id. at 202. But the power to

do either still resides in Congress and not the

President under the Constitution. As a matter of

statutory construction, the invitation to make

“regulate” include taxing power would be disastrous

for the separation of powers, and it would make every

statute using the word “regulate” ripe for the sort of

executive adventurism attempts this use of IEEPA.

The Court should not have its concerns allayed by

the supposed limitation of the word “regulate” being

somewhere near the word “importation.” Just as

“regulate” being near the word “exportation” fails to

prevent the Government, here, from maintaining an

unprecedented power to tax with that one word,

neither will the absence of the word “importation”

stop the Executive from improperly using the word

“regulate” to assert taxing power in another statute.

This Pandora’s box must not be opened.

Finally, the extrinsic materials that the

Government and its amici also cite carry little weight,

even less than legislative history. See Exxon Mobil

22

Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568

(2005) (“the authoritative statement is the statutory

text, not the legislative history or any other extrinsic

material”). In any event, these materials do not

suggest that Congress has ever used “regulate” to

authorize tariffs or any taxation.

James Madison’s letter of 1828 does not aid the

“regulate means tariff” argument. As explained both

by Madison and Senator Daniel Webster in his

famous Second Response to Hayne, Madison’s letter

was not about whether Congress could impose duties

or tariffs. See Letter from James Madison to Joseph C.

Cabell (Sept. 18, 1828), in 9 THE WRITINGS OF JAMES

MADISON 316 (Gaillard Hunt ed. 1910); Daniel

Webster, Second Reply to Hayne, January 26 and 27,

1830, in ROBERT C. BYRD, THE SENATE 1789-1989:

CLASSIC SPEECHES 1830-1993, VOL. 3, 37, 56-57 n. 26

(1994) (explaining his change in his tariff position and

citing Madison’s letter as an “impregnable”

argument). As we have seen, legislating tariffs was

the first substantive action Congress ever took. The

argument for Madison and Webster was over whether

Congress could impose a “protective” tariff for the

purpose of shielding domestic manufacturers from

foreign competition. According to Madison, that

power of imposition came from the Power to

“regulate” foreign commerce. Madison letter at 316.

Madison did not claim that the Commerce Clause

itself grants authority for protective tariffs. Rather,

he argued that Congress may constitutionally impose

tariffs

that

incidentally

protect

domestic

manufacturers because they are a form of taxation on

imports aimed at the public welfare. See, e.g., id. at

23

332 (“That the encouragement of Manufactures, was

an object of the power to regulate trade, is proved by

the use made of the power for that object, in the first

session of the first Congress under the

Constitution.”). As detailed above, Congress never

has used the word “regulate” to order or authorize

tariff legislation. Neither the Government nor any

amici link Madison and Webster’s argument that

protective tariffs were lawful with IEEPA when it was

written, nor as Congress understood it in the 1970’s.

That is because no such link exists.

II.

JURISDICTION LIES IN THE DISTRICT COURT

UNDER IEEPA, NOT IN THE COURT OF

INTERNATIONAL TRADE BASED ON HTSUS

MODIFICATIONS OR THE EXECUTIVE ORDERS

This Court has jurisdiction to rule that IEEPA

does not authorize any tariffs, whether the Court

concludes that original jurisdiction lies in the district

court or the Court of International Trade. Under the

better reading of 28 U.S.C. § 1581(i)(1)(B), however,

jurisdiction lies in the district court.

A. Because Jurisdiction and Merits

Inquiries Overlap, this Court Should

Interpret IEEPA to Decide Jurisdiction

The Government’s argument that a court cannot

determine its own jurisdiction when the merits and

jurisdiction overlap is in error—and unpersuasive.

Every court must validate its own jurisdiction before

considering the merits. Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 94 (1998) (circuit courts);

Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77

24

(2013). This axiom applies even if the jurisdictional

inquiry overlaps with the merits, as this Court has

stressed. See, e.g., Bolivarian Republic of Venez. v.

Helmerich & Payne Int’l Drilling Co., 581 U.S. 170,

178 (2017) (to “answer the jurisdictional question,”

courts “must inevitably decide some, or all, of the

merits issues”) (emphasis added); Brownback v. King,

592 U.S. 209, 217 (2021) (where “the ‘merits and

jurisdiction … come intertwined[]’ … a court can

decide ‘all … of the merits issues’ in resolving a

jurisdictional question, or vice versa”). 17

This Court endorsed this long-established

approach in K Mart Corp. v. Cartier, Inc., where it

granted certiorari specifically “to resolve conflicts

among the Courts of Appeals”—including between the

D.C. Circuit and Federal Circuit—and “affirm[ed] …

that the District Court had jurisdiction.” 485 U.S.

176, 182 (1988). In that case the Court determined

that the ordinary meaning of the word “embargoes”

17 The Government misreads Garland v. Aleman Gonzalez, 596

U.S. 543 (2022). There, the Supreme Court rejected plaintiffs’

proposed jurisdictional argument by adopting the “most natural

interpretation” of the statutory text. Id. at 552. It then noted as

one “additional” reason the plaintiffs’ proposed reading was

inconsistent with the statute, that plaintiffs’ reading would

create the unusual problem of requiring a court to “hold a trial”

to determine jurisdiction, leading to the risk a court might then

“reject[] the claim on the merits” and discover “it never had

jurisdiction.” Id. at 554. The Court recognized that it “is of course

true” that “it is common for jurisdictional inquiries and the

merits to overlap.” Id. at 554 n.5. Likewise, in Michael Simon

Design, Inc. v. United States, 609 F.3d 1335, 1341-42 (Fed. Cir.

2010), the court resolved jurisdiction at the outset, based on the

statute’s plain text.

25

did not apply to the injunctive relief sought there by

a trademark holder to exclude certain goods. Id. at

185. Just as in that case there was “no hint that

Congress intended to depart from the ordinary

meaning of ‘embargoes’” so as to give the CIT

jurisdiction, id. at 190, there is no such hint here that

Congress meant for the word “regulate” to depart

from its ordinary meaning to mean “tax” instead.

B. The Challengers’ Claims Arise out of

IEEPA, and Not out of the HTSUS

Modifications or the Executive Orders

The Government cites § 1581(i)(1)(B), under

which the CIT has jurisdiction if an action “arises out

of a[] law of the United States providing for … tariffs.”

28 U.S.C. § 1581(i)(1)(B) 18; Pet. Br. 47. 19 This

provision governs here, the Government argues, on

the theory that (1) this action “arises out of” the

executive orders and HTSUS modifications that

18 The Government also contends (Pet. Br. 47) that the CIT has

jurisdiction under § 1581(i)(1)(D), which provides jurisdiction

over “any civil action … that arises out of any law of the

United States providing for … administration and

enforcement with respect to the matters referred to in” any

preceding provision of § 1581(i)(1). 28 U.S.C. § 1581(i)(1)(D)

(emphasis added). Like its other argument in this vein, this

one fails because this action arises out of IEEPA and not from

EO’s or HTSUS amendments and because neither EO’s nor

HTSUS amendments are “law[s] of the United States.”

19 At no point did the Government have this theory of jurisdiction

when it moved in the first filed case to transfer the Emily Ley

amici to the CIT. The theory emerged in the CIT as the litigation

proceeded, and is not discernible from the EO’s or the

Government’s original filings.

26

implemented the IEEPA tariffs, and (2) those

executive orders and HTSUS modifications qualify as

“law[s] of the United States.” Pet. Br. 47-48. This

theory fails both of § 181’s requirements for

jurisdiction: (1) These cases do not “arise out of” the

executive orders of their own force but only upon their

invocation of IEEPA and not because of the resulting

HTSUS modifications, and (2) those orders and

modifications do not constitute “law[s]” in this

context.

It is important the Court dismiss this theory, as it

will no doubt otherwise be used again. This

administration has issued more EO’s than any other

in history at this point in an administration, and it

will likely try to alter the HTSUS amendments again

by similar legerdemain if this theory is not firmly

rejected. See Fin Daniel Gomez & Anne Bryson,

Trump Sets Executive Order Record in First 100 Days,

CBS News, https://www.cbsnews.com/news/trumpfirst-100-days-executive-order-record/ (Apr. 29, 2025,

7:02 AM) (most through 100 days); see also Executive

Orders,

The

Am.

Presidency

Project,

https://www.presidency.ucsb.edu/statistics/data/exec

utive-orders (Oct. 15, 2025) (listing the second Trump

Administration as averaging the second most

executive orders per year).

As already explained, the Government’s

argument that a court cannot determine its own

jurisdiction when the merits and jurisdiction overlap

is contrary to this Court’s rulings that courts must

decide jurisdiction at the outset.

27

1. This Action “Arises” Only out of

IEEPA, Not the Executive Orders

or

HTSUS

Modifications

The Government’s theory fails the “arises out of”

requirement because precedent interpreting that

term shows that this action “arises” exclusively out of

IEEPA. Courts identify the law(s) from which an

action “arises” by focusing on the substantive law the

court must interpret to decide the case.

Section 1331 is the source of the “arises” language

in § 1581(i). Am. Air Parcel Forwarding Co. v. United

States, 515 F. Supp. 47, 51 (Ct. Int’l Trade 1981). This

Court explained that a claim “aris[es] under” 28

U.S.C. § 1331 only if federal law is an “essential”

element of the claim and a “genuine and present

controversy … exist[s] with reference to it.” Gully v.

First Nat’l Bank, 299 U.S. 109, 112-13 (1936).

Similarly, addressing 28 U.S.C. § 1338(c), which

grants district courts jurisdiction over civil actions

“arising under” patent statutes, this Court stated that

a claim “aris[es] under” the law that “create[d]” the

claim, and which the court therefore must construe to

decide that claim. Christianson v. Colt Indus.

Operating Corp., 486 U.S. 800, 808-09 (1988). As

these cases show, a claim does not “arise” from every

law that is one of the claim’s “ingredient[s].” Merrell

Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 807

(1986).

When applied to the Challengers’ claims, these

criteria point exclusively at IEEPA. The Challengers’

28

claims focus solely on whether IEEPA granted the

President tariff authority. IEEPA is the only

“substantive law under which the President acted,”

see Learning Resources, 784 F. Supp. 3d at 222 n.4,

the only law whose meaning is contested, and the only

law this Court must interpret to decide the case.

Clinching the point, IEEPA is the central and only

thrust of the Government’s defenses of the IEEPA

tariffs, and the only subject matter of the two

decisions that have reached the merits of challenges

to the IEEPA tariffs.

The Government ignores this focus on IEEPA and

argues that these cases arise, not out of IEEPA, but

out of the HTSUS and the executive orders modifying

it or directing its modification. Pet. Br. 47-48. But

neither meets the above governing criteria. This is not

a close call, since no “genuine and present controversy

… exist[s]” about their meaning. Gully, 299 U.S. at

113. And the Court need not construe them to resolve

the Challengers’ claims. Christianson, 486 U.S. at

808.

Only IEEPA meets the governing criteria.

Learning Resources and V.O.S. Selections illustrate

why. All three opinions in V.O.S. Selections and the

district court’s opinion in Learning Resources analyze

IEEPA in extensive detail, without a single page

addressing any dispute about interpreting the

executive orders or the HTSUS. The Government

established and reiterated the same singular focus on

IEEPA. Its merits brief focuses solely on the proper

interpretation of IEEPA. Its Petition for a Writ of

Certiorari likewise focuses solely on interpreting

IEEPA, Pet. for Writ of Cert., Trump v. V.O.S.

29

Selections, Inc., No. 25-250 (Sep. 3, 2025); and its

Motion to Expedite Consideration states at the outset

that the subject matter of the case is “legal standing

of the President’s tariffs under [IEEPA],” Motion to

Expedite Consideration at 1, Trump v. V.O.S.

Selections, Inc., No. 25-250 (Sep. 3, 2025). None of the

Government’s submissions suggests the Court needs

to interpret the executive orders—again, except for

their reliance on IEEPA—or the HTSUS

modifications. The executive orders and HTSUS

modifications fail all of these tests because neither

has any relevance to this case unless the Court

decides that IEEPA authorizes tariffs. As the court in

Learning Resources correctly held, the action arose

under IEEPA because that statute is “the substantive

law under which the President acted.” 784 F. Supp.

3d at 222 n.4.

2. The HTSUS Modifications and

Executive Orders Are Not “Laws

of the United States” in this

Context

Even if the Government could meet that

requirement, its theory still would fail because the

executive orders and HTSUS modifications do not

qualify as “law[s] of the United States.” Modifications

to the HTSUS are “provisions of law” only if they are

“made … by the President under authority of law.” 19

U.S.C. § 3004(c)(1)(C) (emphasis added). But the

President did not make the relevant modifications

“under authority of law.” He lacked authority to make

them because IEEPA does not grant him tariff power.

Therefore, the HTSUS modifications do not rest on

30

any legal authority, and do not qualify as “provisions

of law.” 19 U.S.C. § 3004(c)(1)(C).

The executive orders similarly fail to qualify as

laws of the United States because an executive order

not based on statutory authority is not a “law of the

United States” within the meaning of 28 U.S.C.

§ 1581. “[T]he President’s power, if any, to issue [an]

order must stem either from an act of Congress or

from the Constitution itself.” Youngstown Sheet &

Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). The

President cannot unilaterally create federal law,

since it is a “fundamental constitutional principle

that ‘[t]he power to make the necessary laws is in

Congress; the power to execute in the President.’”

Medellín v. Texas, 552 U.S. 491, 532 (2008) (cleaned

up) (holding that a presidential memorandum lacking

statutory authorization cannot create enforceable

federal law). See also City of New York v. FCC, 486

U.S. 57, 63 (1988) (stating that “Laws of the United

States” refers only to “federal statutes themselves and

federal regulations that are properly adopted in

accordance with statutory authorization”).

The IEEPA tariff executive orders lack that

necessary foundation 20 because they wrongfully rely

20 This Court’s rulings on Presidential authority to impose tariffs

on the new territories of Puerto Rico and the Philippines are

instructive in highlighting the President’s inability to impose

tariffs without a Congressional grant of authority. In United

States v. Heinszen, 206 U.S. 370 (1907), the Court acknowledged

that tariffs the President imposed on the Philippines before

Congress passed a tariff statute granting any such authority

were illegal. Id. at 382. The President has no inherent tariff

31

on IEEPA for their status as law. And the

Government fails to show that IEEPA authorizes the

President to order tariffs. The executive orders

therefore lack the statutory authority required to

qualify as “laws.” Any contrary holding invites the

Executive to wrongfully and unlawfully alter the

HTSUS amendments and so strip Americans of the

right to resist such action in their district courts.

CONCLUSION

The Court should hold that the President has no

authority under IEEPA to impose any tariffs and that

neither Executive Orders nor the HTSUS

amendments strip district courts of jurisdiction.

Should the Court find that the CIT had jurisdiction,

it should still hold that IEEPA does not authorize the

President to impose any tariffs on Americans.

Respectfully submitted,

/s/ John J. Vecchione

John J. Vecchione

Counsel of Record

Andrew J. Morris

Markham S. Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

4250 N. Fairfax Dr., Suite 300

Arlington, VA 22203

Phone: (202) 869-5210

john.vecchione@ncla.legal

authority and the executive orders which emerge solely from his

Article II powers cannot impose them. Id.

32

Counsel for Amici Curiae

October 24, 2025