Amicus Curiae Brief — Learning Resources, Inc., et al., Petitioners v. Donald J. Trump, President of the United States, et al.
Supreme Court briefOct 24, 2025
Ask Donna
What actually matters in this document.
Text
Nos. 24-1287 and 25-250
In the Supreme Court of the United States
LEARNING RESOURCES, INC., et al.,
Petitioners,
v.
DONALD J. TRUMP, PRESIDENT
OF THE UNITED STATES, et al.,
Respondents.
DONALD J. TRUMP, PRESIDENT
OF THE UNITED STATES, et al.,
Petitioners,
v.
V.O.S. SELECTIONS, INC., et al.,
Respondents.
On Writ of Certiorari Before Judgment to the United
States Court of A ppeals for the District of Columbia
Circuit and on Writ of Certiorari to the United States
Court of A ppeals for the Federal Circuit
BRIEF FOR MEMBERS OF THE UNITED STATES
CONGRESS AS AMICI CURIAE SUPPORTING
PETITIONERS IN NO. 24-1287 AND
RESPONDENTS IN NO. 25-250
Jennifer Hillman
Peter Harrell
Georgetown University
Law Center
600 New Jersey Avenue NW
Washington, DC 20001
William Fred Norton
Nathan L. Walker
Josephine K. Petrick
Counsel of Record
Celine G. Purcell
Rebecca Kutlow
Emily Kirk
The Norton Law Firm PC
300 Frank H. Ogawa Plaza,
Suite 450
Oakland, California 94612
(510) 906-4900
jpetrick@nortonlaw.com
Counsel for Amici Curiae
120654
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF CITED AUTHORITES . . . . . . . . . . . . . . . . v
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1
DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I.
When Congress delegates constitutional
authority to impose tariffs, it does so
explicitly and with procedural safeguards . . . . . 3
A. The Constitution gives Congress, not
the President, control over whether
to impose tariffs . . . . . . . . . . . . . . . . . . . . . . . 3
B. When Congress delegates its tariff
authority, it does so explicitly and
specifically, as it must . . . . . . . . . . . . . . . . . . 4
C. When Congress delegates its tariff
authority, it imposes substantive
limitations and procedural controls . . . . . . . 7
II. IEEPA does not allow the President to
impose tariffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ii
Table of Contents
Page
A. The plain text of IEEPA does not
provide the President the power
to impose tariffs . . . . . . . . . . . . . . . . . . . . . . 12
B. Reading IEEPA to confer tariff authority
would nullify trade statutes . . . . . . . . . . . . 13
C. IEEPA lacks the clear authorization
Congress provides when delegating tariff
authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
D. The history of IEEPA confirms that it
does not bestow a tariff power . . . . . . . . . . 16
E. Presidents’ past uses of IEEPA
conf irm that it does not include
a tariff power . . . . . . . . . . . . . . . . . . . . . . . . 21
F.
Reading IEEPA’s power to “regulate”
to include a power to levy tariffs
or other surcharges would lead to
unconstitutional and absurd results . . . . . . 22
G. Courts have repeatedly held that
IEEPA’s delegation of congressional
power to the President should be
narrowly construed . . . . . . . . . . . . . . . . . . . 26
iii
Table of Contents
Page
III. The President’s use of IEEPA as a trade
statute usurps Congress’s core constitutional
powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
APPENDIX — LIST OF AMICI CURIAE . . . . . . . . 1a
iv
TABLE OF CITED AUTHORITIES
Page
Cases
A.G. Spalding & Bros. v. Edwards,
262 U.S. 66 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Biden v. Nebraska,
600 U.S. 477 (2023) . . . . . . . . . . . . . . . 14, 21, 23, 29, 30
Bittner v. United States,
598 U.S. 85 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Cargo of Brig Aurora v. United States,
7 Cranch 382 (1813) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Dames & Moore v. Regan,
453 U.S. 654 (1981) . . . . . . . . . . . . . . . . . . . 3, 22, 28, 29
Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building & Constr. Trades Council,
485 U.S. 568 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Erlenbaugh v. United States,
409 U.S. 239 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
FCC v. Consumers’ Research,
145 S. Ct. 2482 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . 16
Federal Energy Admin. v. Algonquin SNG, Inc.,
426 U.S. 548 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 11, 15
v
Cited Authorities
Page
Gonzales v. Oregon,
546 U.S. 243 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
INS v.
National Center for Immigrants’ Rights, Inc.,
502 U.S. 183 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
J.W. Hampton, Jr. & Co. v. United States,
276 U.S. 394 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Jama v. ICE,
543 U.S. 335 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Learning Resources, Inc. v. Trump,
784 F. Supp. 3d 209 (D.D.C. 2025) . . . . . . . . . 11, 15, 27
Loper Bright v. Raimondo,
603 U.S. 369 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Marland v. Trump,
498 F. Supp. 3d 624 (E.D. Pa. 2020) . . . . . . . . . . . . . 27
Marshall Field & Co. v. Clark,
143 U.S. 649 (1892) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
National Credit Union Admin. v.
First Nat. Bank & Trust Co.,
522 U.S. 479 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
vi
Cited Authorities
Page
National Federation of Independent Bus. v.
Department of Labor, Occupational Safety &
Health Admin.,
595 U.S. 109 (2022) (per curiam) . . . . . . . . . . 21-22, 23
National Federation of Independent Bus. v.
Sebelius,
567 U.S. 519 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Parker Drilling Management Servs., Ltd. v.
Newton,
587 U.S. 601 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
RadLAX Gateway Hotel, LLC v.
Amalgamated Bank,
566 U.S. 639 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
TikTok Inc. v. Trump,
507 F. Supp. 3d 92 (D.D.C. 2020) . . . . . . . . . . . . . . . . 27
United States v. Guy W. Capps, Inc.,
204 F.2d 655 (4th Cir. 1953) . . . . . . . . . . . . . . . . . . . . 28
United States v. Penn,
63 F.4th 1305 (11th Cir. 2023) . . . . . . . . . . . . . . . . . . 24
United States v. Yoshida Intl., Inc.,
526 F.2d 560 (C.C.P.A. (Cust.) 1975) . . . . . . . . . . . . . 20
V.O.S. Selections, Inc. v. Trump,
149 F.4th 1312 (Fed. Cir. 2025) . . . . 6, 7, 14, 15, 16, 17,
21, 22, 23, 24, 25
vii
Cited Authorities
Page
V.O.S. Selections, Inc. v. United States,
772 F. Supp. 3d 1350 (CIT 2025) . . . . . . . . . . . . . . . . 14
Van Loon v. Department of the Treasury,
122 F.4th 549 (5th Cir. 2024) . . . . . . . . . . . . . . . . . . . 27
West Virginia v. EPA,
597 U.S. 697 (2022) . . . . . . . . . . . . . . . . . . . . . . . . 14, 23
Whitman v. American Trucking Assns.,
531 U.S. 457 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 22, 25
Wisconsin Dept. of Revenue v.
William Wrigley, Jr., Co.,
505 U.S. 214 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 28
Zivotofsky ex rel. Zivotofsky v. Kerry,
576 U.S. 1 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 16
Statutes and Constitutional Provisions
U.S. Const. Art. I, § 8, cl. 1 . . . . . . . . . . . . . . . . . . . 1, 4, 25
U.S. Const. Art. I, § 8, cl. 3 . . . . . . . . . . . . . . . . 2, 4, 25, 28
U.S. Const. Art. I, § 9, cl. 5 . . . . . . . . . . . . . . . . . . . . 23, 24
15 U.S.C. § 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
viii
Cited Authorities
Page
19 U.S.C. § 1338 . . . . . . . . . . . . . . . . . . . 4, 5, 6, 8, 9, 15, 19
19 U.S.C. § 1862 . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 15, 19
19 U.S.C. § 2112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
19 U.S.C. § 2132 . . . . . . . . . . . . . . . . 4, 5, 6, 8, 9, 13, 15, 20
19 U.S.C. § 2251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
19 U.S.C. §§ 2251–2254 . . . . . . . . . . . . . . . . . . . . . . 4, 5, 13
19 U.S.C. § 2252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
19 U.S.C. § 2253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6,8,9
19 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
19 U.S.C. § 2411 . . . . . . . . . . . . . . . . . . . . . . 5, 6, 10, 11, 15
19 U.S.C. §§ 2411–2413 . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
19 U.S.C. §§ 2411–2420 . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5
19 U.S.C. § 2412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
19 U.S.C. § 2492 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
19 U.S.C. §§ 2701-2707 . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
19 U.S.C. § 2703A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ix
Cited Authorities
Page
19 U.S.C. § 3521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
19 U.S.C. §§ 3701–3741 . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
19 U.S.C. §§ 4501–4732 . . . . . . . . . . . . . . . . . . . . . . . 28, 30
47 U.S.C. § 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
50 U.S.C. § 1701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15
50 U.S.C. §§ 1701–1710 . . . . . . . . . . . . . . . . . . . . . . . . . 2, 15
50 U.S.C. § 1702 . . . . . . . . . . . . . . . . . . 7, 12, 22, 23, 25, 26
50 U.S.C. § 4301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Other Authorities
55 Cong. Rec. 4842–4853 (1917) . . . . . . . . . . . . . . . . . . . 18
Casey, Elsea, & Rosen, The International Emergency
Economic Powers Act: Origins, Evolution, and
Use, Cong. Research Serv. (Sept. 1, 2025) . . . . . 19, 21
Emergency Banking Relief Act of 1933,
48 Stat. 1 § 2 (1933) . . . . . . . . . . . . . . . . . . . . . . . . 18, 20
Espionage Act of 1917,
Pub. L. 65-24, 40 Stat. 217 . . . . . . . . . . . . . . . . . . . . . 18
Exec. Order No. 2770 (Dec. 7, 1917) . . . . . . . . . . . . . . . . 18
x
Cited Authorities
Page
Exec. Order No. 2792A (Oct. 12, 1917) . . . . . . . . . . . . . . 18
Exec. Order No. 2796 (Feb. 5, 1918) . . . . . . . . . . . . . . . . 18
Exec. Order No. 8389,
5 Fed. Reg. 1400 (Apr. 10, 1940) . . . . . . . . . . . . . . . . 18
Exec. Order No. 8785,
6 Fed. Reg. 2897 (June 14, 1941) . . . . . . . . . . . . . . . . 19
Exec. Order No. 8832,
6 Fed. Reg. 3715 (July 26, 1941) . . . . . . . . . . . . . . . . . 19
Exec. Order No. 12170,
44 Fed. Reg. 65,729 (Nov. 14, 1979) . . . . . . . . . . . . . . 21
Exec. Order No. 13694,
80 Fed. Reg. 18,077 (April 1, 2015) . . . . . . . . . . . . . . 21
H. R. Rep. No. 95-459 (June 23, 1977) . . . . . . . . . . . 20, 21
Hamilton, Federalist Nos. 31–36, The Same
Subject Continued: Concerning the General
Power of Taxation (Jan. 1788) . . . . . . . . . . . . . . . . . . 17
Hamilton, The Federalist No. 69 (G. Carey &
J. McClellan, eds. 2001) . . . . . . . . . . . . . . . . . . . . . . . 16
Harris & Ewing, How Seized German Millions
Fight Germany, N.Y. Times (Jan. 27, 1918) . . . . . . . 18
xi
Cited Authorities
Page
Non-Intercourse Act of 1809,
Pub. L. 10-24, 2 Stat. 528 . . . . . . . . . . . . . . . . . . . . . . 17
Parrillo, Foreign Affairs, Nondelegation, and
Original Meaning: Congress’s Delegation
of Power t o Lay Emba rgo e s i n 179 4 ,
172 U. Pa. L. Rev. 1803 (2024) . . . . . . . . . . . . . . . . . . 17
Reciprocal Trade Agreements Act of 1934,
Pub. L. 73-316, 48 Stat. 943 . . . . . . . . . . . . . . . . . . . . . 7
S. Rep. No. 93-1298 (1974) . . . . . . . . . . . . . . . . . . . . . . . . 20
S. Rep. No. 95-466 (1977) . . . . . . . . . . . . . . . . . . . . . 20, 21
Tariff Act of 1789, 1 Stat. 24 . . . . . . . . . . . . . . . . . . . . . . 29
Thronson, Toward Comprehensive Reform
of A mer ica’s Emergency Law Reg ime,
46 U. Mich. J. L. Reform 737 (2013) . . . . . . . . . . . . . 19
Trade Facilitation and Trade Enforcement Act
of 2015, Pub. L. 114-125, 130 Stat. 122 . . . . . . . . . . . 30
United States–Taiwan Initiative on 21st-Century
Trade First Agreement Implementation Act,
Pub. L. 118-13, 137 Stat. 63, 64 (2023) . . . . . . . . . . . 28
Zirpoli, Congressional and Executive Authority
Over Foreign Trade Agreements, Congressional
Research Service (Sept. 25, 2025) . . . . . . . . . . . . . . 29
1
INTEREST OF AMICI CURIAE1
Amici Curiae are a bipartisan group of 207 Members
of the U.S. House of Representatives and the U.S. Senate. See Appendix (listing Amici). Amici, who include
members on committees with jurisdiction over tariffs
and trade, have a strong interest in ensuring any action
by the President complies with the authority delegated to
him by Congress. The Constitution grants Congress, not
the President, the authority to impose tariffs and regulate commerce with foreign nations. When the President
wishes to impose tariffs, he must comply with the existing, lawful delegations of tariff power that Congress has
enacted or, if he finds those authorities insufficient, ask
Congress for new authority. Here, however, the President
has usurped Congress’s constitutional authority by impermissibly using the International Emergency Economic
Powers Act (“IEEPA”), 50 U.S.C. § 1701 et seq., to impose
tariffs. Amici urge this Court to hold the President’s
IEEPA tariffs are unlawful.
SUMMARY OF ARGUMENT
The Federal Circuit, Court of International Trade,
and District Court for the District of Columbia all reached
the same correct conclusion: the President’s imposition of
tariffs under IEEPA is unlawful.
Only Congress has the power to “lay and collect Taxes,
Duties, Imposts and Excises,” U.S. Const. Art. I, § 8, cl. 1,
1. Undersigned counsel authored this brief in its entirety. No
monetary contributions have been made to fund the preparation
or submission of this brief.
2
and to “regulate Commerce with foreign Nations,” id.,
cl. 3. This reflects the Framers’ intent for the most
democratically accountable branch—the one closest to
the People—to be responsible for enacting taxes, duties,
and tariffs. Hamilton, Federalist Nos. 31–36, The Same
Subject Continued: Concerning the General Power of
Taxation (Jan. 1788)
Congress enacted IEEPA, 50 U.S.C. §§ 1701–1710,
to provide the President with the power to impose
sanctions, export controls, and similar measures. It
provides the President with defined powers to address
national emergencies but does not confer the power to
impose or remove tariffs.
Neither the word “duties” nor the word “tariffs” appears anywhere in IEEPA. Rather, IEEPA allows the
President, in times of a declared emergency, to “regulate
… importation or exportation” of property. 50 U.S.C.
§ 1702(a)(1)(B). IEEPA’s delegated power to “regulate” is
not a power to impose tariffs.
IEEPA contains none of the hallmarks of legislation
delegating tariff power to the executive, such as limitations tied to specific products or countries, caps on the
amount of tariff increases, procedural safeguards, public
input, collaboration with Congress, or time limitations. In
the five decades since IEEPA’s enactment, no President
from either party, until now, has ever invoked IEEPA to
impose tariffs.
The Administration’s interpretation of IEEPA would
effectively nullify the guardrails set forth in every statute in which Congress expressly granted the President
limited tariff authority—a result Congress did not intend.
3
Contrary to the views expressed by the Administration and the Federal Circuit dissent, IEEPA does not
authorize the President to impose tariffs as “bargaining
chips.” While this Court has held that Presidents may
use IEEPA to freeze foreign assets and to then use those
frozen assets as leverage in foreign affairs negotiations,
Dames & Moore v. Regan, 453 U.S. 654, 673 (1981), IEEPA
does not grant the President the power to impose tariffs on
American citizens importing goods to generate leverage in
trade talks. Nor may the President use IEEPA to override
America’s trade statutes, which Congress has carefully
considered and enacted over the years. The President “is
not free from the ordinary controls and checks of Congress
merely because foreign affairs are at issue.” Zivotofsky ex
rel. Zivotofsky v. Kerry, 576 U.S. 1, 21 (2015).
This Court should hold that IEEPA does not delegate
tariff authority to the President and the President’s tariffs
under IEEPA are therefore unlawful.
DISCUSSION
I.
When Congress delegates constitutional authority
to impose tariffs, it does so explicitly and with
procedural safeguards.
A.
The Constitution gives Congress, not the
President, control over whether to impose
tariffs.
“The President’s power, if any, … 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). Neither is present here.
4
The Constitution vests Congress—not the President—with the exclusive power to “lay and collect Taxes,
Duties, Imposts and Excises,” and to “regulate Commerce
with foreign Nations.” U.S. Const., Art. I, § 8, cls. 1, 3.
The Administration does not argue to the contrary. Thus,
absent a delegation of that authority, the President may
not impose tariffs on imported goods. See Youngstown,
supra, 343 U.S. at 585.
B. When Congress delegates its tariff authority,
it does so explicitly and specifically, as it must.
Congress uses the word “duty” to signal a delegation
of its Article I power to “lay and collect … Duties” and
has done so from the moment it began delegating tariff
authority. 2
• Section 338 of the Tariff Act of 1930 refers to “new
or additional duties.” 19 U.S.C. § 1338(a) (hereinafter “Section 338”).
• Section 232, which authorizes the President to
“adjust imports,” id., § 1862(c), explicitly refers
to “duties” when discussing limits on presidential
adjustments, id., § 1862(a) (titled “Prohibition on
Decrease or Elimination of Duties or Other Import
Restrictions”).
2. The following provisions all reference “duties”: Section
122, Sections 201–204, and Sections 301–310 of the Trade Act of
1974; and Section 338 of the Tariff Act of 1930. 19 U.S.C. § 2132
(“Section 122”); id., §§ 2251–2254 (“Section 201”); id., §§ 2411–2420
(“Section 301”); id., § 1338 (“Section 338”).
5
• Section 122 of the Trade Act of 1974 empowers the
President to proclaim “a temporary import surcharge ... in the form of duties.” Id., § 2132(a)(3)(A).
• Section 201 of that same Act authorizes the President to “proclaim an increase in, or the imposition
of, any duty on the imported article” or to “proclaim
a tariff-rate quota.” Id., §§ 2253(a)(3)(A)–(B).
• Section 301, also of the Trade Act of 1974, allows
the President to “impose duties or other import
restrictions.” Id., § 2411(c)(1)(B).
Unlike these statutes, “Congress did not use the term
‘tariff’ or any of its synonyms” in IEEPA. V.O.S. Selections, Inc. v. Trump, 149 F.4th 1312, 1330, 1332 (Fed. Cir.
2025); see infra § II.A.
All the express tariff statutes were enacted pursuant
to a trade or tariff act:
• Section 338 is part of Chapter 4 of Title 19 of the
U.S. Code. Chapter 4 is titled the “Tariff Act of
1930.” 19 U.S.C. § 1338.
• Section 232 is part of Chapter 7 of Title 19 of the
U.S. Code. Chapter 7 is titled the “Trade Expansion
Program.” 19 U.S.C. § 1862.
• Sections 122, 201, and 301 are all part of Chapter 12
of Title 19 of the U.S. Code. Chapter 12 is titled the
“Trade Act of 1974.” 19 U.S.C. §§ 2132, 2251–2254,
and 2411–2420.
6
By contrast, IEEPA is part of Title 50 (denominated
“War and National Defense”) and is titled the “International Emergency Economic Powers Act.” It is not a
“Tariff” or “Trade” act, nor was it codified as a tariff
statute in Title 19 of the United States Code (denominated
“Customs Duties”). See INS v. National Center for Immigrants’ Rights, Inc., 502 U.S. 183, 189 (1991) (the title
of a statute can aid its interpretation); V.O.S. Selections,
149 F.4th at 1332 (same).
Further, Congress has generally limited delegations
of its tariff authority to physical goods, often “articles”
from a single country:
• Section 338 refers to duties “upon articles wholly or
in part the … product of … any foreign country[.]”
19 U.S.C. § 1338(a).
• Section 201 limits the President’s tariff authority
to a duty or a tariff-rate quota “on the imported
article.” Id., § 2253(a)(3).
• Section 301 permits the duties or other import restrictions “on the goods of … such foreign country.”
Id., § 2411(c)(1)(B).
• Only Section 122 permits temporary, broad-based
tariffs on all imports from all countries, but it limits those tariffs to a maximum increase of 15% ad
valorem and to a period of no more than 150 days.
Id., § 2132(a)(3)(A).
IEEPA, on the other hand, permits the regulation
of the importation or exportation of “any property in
7
which any foreign country or a national thereof has any
interest[,] … or with respect to any property, subject
to the jurisdiction of the United States[.]” 50 U.S.C.
§ 1702(a)(1)(B). Unlike the trade laws, IEEPA extends
to many forms of property that historically have never
been subject to import tariffs, such as financial assets,
real property, and intellectual property rights. Indeed,
IEEPA has most commonly been used to freeze financial
assets, prohibit certain financial transactions, or impose
embargoes and export controls on sensitive technology.
See infra §§ II.D–E; V.O.S. Selections, 149 F.4th at 1335.
IEEPA bears none of the hallmarks of a tariff statute.
It is not one.
C.
When Congress delegates its tariff authority, it
imposes substantive limitations and procedural
controls.
Before the 1930s, Congress did not typically delegate
tariff power at all but set tariff rates legislatively. When
Congress did delegate tariff authority to the President,
it was generally to adjust legislatively established tariff
rates within specified limits and after the President made
specific factual determinations.
With the Reciprocal Trade Agreements Act of 1934,
Pub. L. 73-316, 48 Stat. 943, Congress began more regularly delegating carefully limited tariff-setting authority
to the President. Those delegations usually authorized
the President to negotiate reciprocal trade agreements
and to proclaim limited tariff reductions, within bounds
Congress prescribed.
8
In recent decades, Congress has enacted statutes that
allow the President to adjust tariff rates in response to
specific trade-related concerns or required findings by
U.S. agencies.
These laws, however, include specific procedures, substantive standards, and temporal limits, unlike IEEPA.
First, trade-specific prerequisites must be met before
the President is allowed to act. Section 338, for example,
requires a finding “as a fact” that a foreign country imposes a non-reciprocal “charge, exaction, regulation, or
limitation” on U.S. exports, or “discriminates in fact”
against U.S. imports, compared to imports from other
countries. 19 U.S.C. § 1338(a)(1)–(2).
Section 232 requires a finding and report by the
Secretary of Commerce that an article is being imported
“in such quantities or under such circumstances as to
threaten to impair the national security.” Id., § 1862(b)(3)
(A). Section 232 also requires formal consultations with
the Secretary of Defense. Id., § 1862(b)(1)(B).
Section 122 requires a determination of “large and
serious United States balance-of-payments deficits” or
“an imminent and significant depreciation of the dollar”
requiring special import measures. Id., § 2132(a)(1)–(2).
A surge in imports that threatens serious injury to
the domestic industry producing a comparable product is
the prerequisite to action under Section 201. Id., § 2253.
Section 301 requires a finding that either U.S. rights
under a trade agreement have been denied or that an act,
9
policy, or practice of a foreign country is unreasonable or
discriminatory and burdens or restricts U.S. commerce.
Second, Congress has historically set procedural
safeguards before delegating tariff authority to the
President. Section 201 investigations, for example, require extensive processes conducted by the independent
U.S. International Trade Commission, including (1)
detailed questionnaires, (2) public hearings permitting
written submissions and testimony by interested parties,
(3) a formal vote by the Commission as to whether the
prerequisites are met, and (4) a written report outlining
the factual basis for the Commission’s determination. 19
U.S.C. §§ 2252, 2254.
Similarly, Section 301 requires (1) a formal investigation by the Office of the United States Trade Representative, (2) consultations with interested parties, (3) a public
hearing, and (4) publication in the Federal Register of the
investigation results and the determination of whether the
statutory prerequisites to tariff action have been met. Id.,
§§ 2411–2413.
Third, Congress maintains control over delegated
tariff authority by imposing time limitations, stating the
length of time the tariffs can be in place, or prescribing
how much notice importers must be given before the tariffs are imposed. Section 122, for example, limits tariffs
to no more than 150 days.
Congress has also capped tariff increases. Section 122
limits additional duties to 15% ad valorem. Id., § 2132(a)(3)
(A). Section 338 and Section 201 limit increased tariffs to
50% ad valorem. Id., §§ 2253(e)(3), 1338(d). Section 301(a)(3)
10
specifies that any action taken be “in an amount that is
equivalent in value to the burden or restriction being
imposed by that country on United States Commerce.”
Id., § 2411 (a)(3).
The Administration claims that this Court has long approved broad Congressional delegations to the President
to regulate international trade, including through tariffs.
Brief for Administration 45. But its supporting cases fall
into two categories: those that do not involve tariffs at
all (Cargo of Brig Aurora v. United States, 7 Cranch 382
(1813), addressed embargoes), and those that involve only
narrow tariff applications. The latter required explicit
delegation and compliance with congressional mandates,
including investigations, fact-finding, product limitations,
and rate caps.
For example, J.W. Hampton, Jr. & Co. v. United States,
276 U.S. 394 (1928) involved a tariff on a single product
(barium dioxide) from a single country (Germany) imposed
only after completing a required investigation, including
a public hearing, by the U.S. Tariff Commission (predecessor of the U.S. International Trade Commission) and
a finding that equalizing the cost of production of barium
dioxide between Germany and the United States would
require imposing a two cent per pound additional duty.
Marshall Field & Co. v. Clark, 143 U.S. 649 (1892)
involved the authority for the President to suspend dutyfree treatment for imports of specific products (sugar,
molasses, coffee, tea, or hides) from specific countries
that the President determined were not granting reciprocal access to U.S. agricultural exports. But the effect of
suspending the duty-free treatment merely allowed the
11
tariffs to return to the rates that Congress specified by
statute. “Congress itself prescribed, in advance, the duties to be levied, collected, and paid on sugar, molasses,
coffee, tea, or hides, produced by or exported from such
designated country while the suspension lasted. Nothing
involving the expediency or the just operation of such
legislation was left to the determination of the President.”
Id., at 692–693.
Federal Energy Administration v. Algonquin SNG,
Inc., 426 U.S. 548 (1976) involved the imposition of license
fees only on imports of crude oil and its derivatives, following a Section 232 investigation which determined
that imports of petroleum products were high enough to
threaten national security due to an overdependence on
strategically important oil.
These cases are a far cry from the President’s IEEPA
tariffs, which have been imposed on virtually all products
from virtually all countries, with no public process and no
regard for the tariff statutes or tariff levels that Congress
established.
As an emergency powers statute, IEEPA contains
none of the limits carefully constructed by Congress.
These “comprehensive statutory limitations would be
eviscerated if the President could invoke a virtually
unrestricted tariffing power under IEEPA.” Learning
Resources, Inc. v. Trump, 784 F. Supp. 3d 209, 225 (D.D.C.
2025).
12
II. IEEPA does not allow the President to impose
tariffs.
In enacting IEEPA, Congress did not grant the President additional authority to impose or remove tariffs. Congress adopted IEEPA against a history of statutes that
delegate to the President powers to impose embargoes,
financial sanctions, and similar measures—not tariffs—
and IEEPA’s text and context foreclose it from delegating
tariff authority. Further, the President’s interpretation of
IEEPA could lead to absurd results: if adopted, it could
allow the President to claim an effectively unbounded
power to raise revenues on Americans, upending the
Constitution’s structural commitment to congressional
control over tariffs and revenue-raising.
A.
The plain text of IEEPA does not provide the
President the power to impose tariffs.
IEEPA specifies the powers it grants the Executive. 50 U.S.C. § 1702. In relevant part, it authorizes the
President to
“ investigate, block during the pendency
of an investigation, regulate, direct and
compel, nullify, void, prevent or prohibit, 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., § 1702(a)(1)(B).
13
Despite the many powers enumerated in the statute,
nowhere does it contain the word “tariff,” “duty,” “excise,”
or other similar words Congress consistently uses when
delegating tariff powers to the President. Supra, §§ I.B–
C. This silence speaks volumes. See, e.g., Jama v. ICE,
543 U.S. 335, 341 (2005) (“We do not lightly assume that
Congress has omitted from its adopted text requirements
that it nonetheless intends to apply….”); Bittner v. United
States, 598 U.S. 85, 94 (2023) (similar).
B. Reading IEEPA to confer tariff authority
would nullify trade statutes.
Just three years before passing IEEPA, Congress
built on its extensive architecture of trade statutes by
enacting the Trade Act of 1974, which explicitly authorizes
the President to impose tariffs to address balance-ofpayments emergencies (Section 122, 19 U.S.C. § 2132),
surges in imports (Section 201, id., §§ 2251–2254), and
unlawful or discriminatory trading practices (Section
301, id., § 2411). Congress would hardly have chosen to
give the President an effectively unbounded tariff power
in IEEPA three years later. See, e.g., Parker Drilling
Management Servs., Ltd. v. Newton, 587 U.S. 601, 611
(2019) (Congress is presumed to legislate against the
background of existing law).
For example, with Section 122 of the Trade Act of
1974, Congress recognized that tariffs might be needed on
an urgent and temporary basis to address “large and serious United States balance-of-payments deficits” or certain
other situations that present “fundamental international
payments problems.” 19 U.S.C. § 2132. But Section 122
tariffs are limited in duration and rate and are subject to
other substantive limitations. Ibid.
14
If IEEPA were to authorize tariffs to remedy urgent
balance of payment problems, it would render Section
122 a nullity, violating the canon against rendering other
statutes redundant. See RadLAX Gateway Hotel, LLC
v. Amalgamated Bank, 566 U.S. 639, 645 (2012). Section
122 “removes the President’s power to impose remedies
in response to balance-of-payments deficits, and specifically trade deficits, from the broader powers granted to
a president during a national emergency under IEEPA
by establishing an explicit non-emergency statute with
greater limitations.” V.O.S. Selections, Inc. v. United
States, 772 F. Supp. 3d 1350, 1375 (CIT 2025).
Similar logic applies to other aspects of the 1974
Act. For example, if a President could simply declare a
national emergency and invoke IEEPA to impose tariffs
in response to a perceived unfair practice by a U.S. trade
partner, the President would have no reason to adhere to
the detailed fact-finding, transparent process requirements, and limitations on tariff levels that Congress
specified in Section 301. See 19 U.S.C. § 2412.
C.
IEEPA lacks the clear authorization Congress
provides when delegating tariff authority.
This Court requires a “clear congressional authorization” before interpreting a statute as conferring sweeping authority over areas of vast economic and political
significance—the kind the Administration claims here.
V.O.S. Selections, 149 F.4th at 1336; see West Virginia
v. EPA, 597 U.S. 697, 723 (2022); Biden v. Nebraska, 600
U.S. 477, 501 (2023). 3 “It would be anomalous, to say the
3. The Federal Circuit correctly held—as its sister circuits
have—that these principles apply equally when the challenged
15
least, for Congress to have so painstakingly described the
President’s limited authority on tariffs in other statutes,
but to have given him, just by implication, nearly unlimited
tariffing authority in IEEPA.” Learning Resources, 784
F. Supp. 3d at 225–226 (quoting Gonzales v. Oregon, 546
U.S. 243, 262 (2006)) (cleaned up).
Congress’s pattern is unmistakable. In every tariff
delegation, Congress uses explicit language—“duties,”
“tariffs,” “articles,” “countries of origin”—and imposes
trade-specific prerequisites. See supra §§ I.B–C; 19
U.S.C. §§ 1338(a), 1862(a), 2132(a)(3)(A), 2251(a)(3)(A),
(B), 2411(c)(1)(B), 2492(a). IEEPA contains none of this
language. 50 U.S.C. §§ 1701–1710.
These limitations are not just signals—they are
constitutional requirements. Separation of powers principles, including the nondelegation doctrine, demand
such constraints before tariff power can be delegated
at all. V.O.S. Selections, 149 F.4th at 1336. Yet IEEPA
contains no “clear preconditions to Presidential action”
comparable to those in tariff statutes. Algonquin, 426
U.S. at 559. Instead, IEEPA requires only a declaration of an “unusual and extraordinary threat” to national security, foreign policy, or the economy originating
from abroad, with no trade-specific criteria. 50 U.S.C.
§ 1701(a). While IEEPA covers a wide variety of national
emergencies, Congress did not authorize the delegated
use of tariffs to remedy them.
action is the result of presidential or agency action: agency heads
are accountable to the President. V.O.S. Selections, 149 F.4th at
1334, n. 17 (collecting cases).
16
D.
The history of IEEPA confirms that it does not
bestow a tariff power.
To circumvent IEEPA’s plain language, the Administration invokes “foreign affairs powers” to justify the
IEEPA tariffs. But whatever the President’s powers may
be in matters of foreign affairs, it is not in dispute that
only Congress has the constitutional power to regulate
commerce or impose duties. Unlike the English King, the
President “can prescribe no rules concerning the commerce or currency of the nation”; nor could the President,
unlike the King, “lay embargoes for a limited time.” Hamilton, The Federalist No. 69 (G. Carey & J. McClellan, eds.
2001). And the President “is not free from the ordinary
controls and checks of Congress merely because foreign
affairs are at issue.” Zivotofsky, 576 U.S. at 21. Thus,
tariffs and trade are not an area where the President has
“constitutional responsibilities and independent Article
II authority,” FCC v. Consumers’ Research, 145 S. Ct.
2482, 2516 (2025) (Kavanaugh, J., concurring), such that
the President should be entitled to substantial deference
in interpreting such statutes.
Further, Congress has long distinguished between
delegations of its power to regulate commerce via the
imposition of embargoes and sanctions, on the one hand,
and delegations of its power to impose tariffs, on the other.
The dissenting opinion below misreads both this history
and IEEPA when it contends that since IEEPA “includes
authorization for the extreme tools of ‘prohibit[ing]’ and
‘prevent[ing]’ importation,” it should also authorize tariffs,
as “[t]axing through tariffs is just a less extreme, more
flexible tool for pursuing the same objective….” V.O.S.
Selections, 149 F.4th at 1363 (Taranto, J., dissenting).
17
This misreading flows, in part, from the dissent’s erroneous assertion that “tariffs involve the President’s role
and responsibilities in foreign affairs.” Id., at 1379. They
do not. Tariffs are paid by U.S. importers who decide to
purchase a foreign good, and they are assessed under U.S.
laws and regulations at rates established by Congress.
Congress’s periodic delegations of the power to impose embargoes and other sanctions have never included
a tariff power. This reflects the Founders’ insistence that
tariffs, one of the principal forms of revenue-raising in the
18th and early 19th Centuries, be managed by the most
democratically accountable branch—the one closest to the
People—Congress. Hamilton, Federalist Nos. 31–36, The
Same Subject Continued: Concerning the General Power
of Taxation (Jan. 1788)
In 1794, for example, after enacting a series of shortterm embargoes due to heightened tensions with Britain,
Congress authorized President Washington to make decisions regarding the embargo for a period of five months
while Congress was out of session. But Congress did not
delegate to President Washington any power to change
the tariff rates levied on imported goods, only the power
to maintain or suspend the embargo. See Parrillo, Foreign
Affairs, Nondelegation, and Original Meaning: Congress’s
Delegation of Power to Lay Embargoes in 1794, 172 U. Pa.
L. Rev. 1803 (2024). Similarly, the Non-Intercourse Act of
1809, Pub. L. 10-24, § 4, 2 Stat. 528, authorized the President to terminate the embargo against either France or
Britain after making certain factual determinations—but
not to change the tariff rates imposed on either country.
The history of both IEEPA and its predecessor, the
Trading with the Enemy Act (TWEA), 50 U.S.C. § 4301
et seq., confirms that Congress delegates power to impose
18
sanctions and embargoes in foreign affairs contexts—but
not tariff power. In October 1917, during World War I,
Congress enacted TWEA to establish a comprehensive
regime to administer German and other enemy-owned
property in the United States, limit or regulate financial
transactions with Germany and its allies, and allow or
disallow trade with the enemy powers. See 55 Cong. Rec.
4842–4853 (1917). TWEA expanded on provisions of the
Espionage Act of 1917, Pub. L. 65-24, 40 Stat. 217, enacted
several months earlier, that had authorized the President
to prohibit or regulate U.S. exports.
During World War I, the President used TWEA to
restrict imports and exports, Exec. Order No. 2792A (Oct.
12, 1917); to prohibit foreign insurance companies from
operating in the U.S., Exec. Order No. 2770 (Dec. 7, 1917);
to regulate foreign exchange and securities transactions
with Germany and other enemy countries; to restrict debt
payments to enemy nationals, Exec. Order No. 2796 (Feb.
5, 1918); and to administer or confiscate enemy property
in the U.S., see Harris & Ewing, How Seized German
Millions Fight Germany, N.Y. Times, Jan. 27, 1918, among
other purposes. None of these actions involved tariffs.
President Roosevelt invoked TWEA in the 1930s,
first for the 1933 Bank Holiday and later to freeze foreign
assets. (Indeed, faced with legal ambiguity about the use
of TWEA to impose the Bank Holiday, Congress quickly
amended the statute to clarify that the President could use
it outside the context of war. Emergency Banking Relief
Act, 48 Stat. 1, § 2 (1933).) In 1940, following Germany’s
invasion of Norway and Denmark, Roosevelt used it to
freeze Norwegian and Danish assets in the U.S. to keep
them beyond Germany’s reach. Exec. Order No. 8389, 5
Fed. Reg. 1400 (Apr. 10, 1940). TWEA was also the basis
19
for President Roosevelt’s wartime freezing of German
and Italian property, Exec. Order No. 8785, 6 Fed. Reg.
2897 (June 14, 1941) and Japanese property, Exec. Order
No. 8832, 6 Fed. Reg. 3715 (July 26, 1941). Roosevelt
never used TWEA to impose tariffs, even after Congress
amended it in December 1941 to add the language, later
incorporated into IEEPA in 1977, at issue here. See Casey,
Elsea, & Rosen, The International Emergency Economic
Powers Act: Origins, Evolution, and Use, Cong. Research
Serv. (Sept. 1, 2025), https://www.congress.gov/crs_external_products/R/PDF/R45618/R45618.16.pdf.
When Congress enacted IEEPA in 1977, it was part of
a package of reforms designed to limit—not expand—the
President’s use of emergency powers while maintaining
authority for the President to issue embargoes or restrict
financial transactions in the context of foreign affairs.
Thronson, Toward Comprehensive Reform of America’s
Emergency Law Regime, 46 U. Mich. J. L. Reform 737
(2013). IEEPA was also enacted against the backdrop
of the Trade Act of 1974, which provided the President
with new, carefully circumscribed delegations to impose
tariffs, augmenting existing tariff authorities to protect
national security (Section 232) and combat discrimination
(Section 338). See 19 U.S.C. §§ 1862, 1338. There was
no comparable statute, other than TWEA, delegating
to the President the authority to impose sanctions and
embargoes. Thus, Congress needed to provide the President with a flexible authority to block, nullify or prohibit
foreign transactions, but it did not need to provide tariff
powers in IEEPA.
It is true that Congress passed IEEPA three years
after the Court of Customs and Patent Appeals upheld
20
President Nixon’s reliance on TWEA to impose limited
and temporary tariffs on certain imports, United States
v. Yoshida Int’l., Inc., 526 F.2d 560 (C.C.P.A. (Cust.) 1975),
and that the House and Senate Reports on IEEPA include
references to Nixon’s use of TWEA in sections describing
TWEA’s historical use, H. R. Rep. No. 95-459, p. 5 (1977);
S. Rep. No. 95-466, p. 2 (1977). But Congress responded
in 1974 to President Nixon’s imposition of tariffs by enacting Section 122—not by any supposed ratification of
Yoshida in IEEPA. When it did so, Congress expressly
declined to ratify President Nixon’s 1971 surcharge, while
concluding that the Executive needed “explicit statutory
authority to impose certain restrictions on imports for
balance of payments reasons.” S. Rep. No. 93-1298, 1974
WL 11696 at *7237 (1974). And Congress included in Section 122 additional constraints beyond those stipulated in
TWEA, for example, limiting tariffs to 150 days, 19 U.S.C.
§ 2132, whereas TWEA actions had no specific statutorily
required endpoint.
When Congress has ratified after-the-fact presidential action, it has done so explicitly, as it did with respect
to President Roosevelt’s 1933 Bank Holiday. See Emergency Banking Relief Act, 48 Stat. 1, § 2 (1933). IEEPA
contains no express ratification of the power to tariff
after President Nixon’s action at issue in Yoshida. This
is entirely consistent with IEEPA’s legislative history
that makes clear that Congress intended to narrow, not
expand, IEEPA’s scope.
The House and Senate Reports describe IEEPA’s
powers as “authoriz[ing] the President to regulate
transactions in foreign exchange, banking transactions
involving any interest of any foreign country or national
21
thereof, or the importing or exporting of currency or securities, and to regulate or freeze any property in which
any foreign country or national thereof has any interest.”
H. R. Rep. No. 95-459, p. 15 (1977); see also S. Rep. No.
95-466, p. 4,543 (1977); H. R. Rep. No. 95-459, p. 15 (1977).
Notably absent from these descriptions is any reference
to the word “tariff.”
E. Presidents’ past uses of IEEPA confirm that it
does not include a tariff power.
Presidents invoked IEEPA sixty-nine times between
1977 and early 2024. Casey & Elsea, The International
Emergency Economic Powers Act: Origins, Evolution,
and Use, Cong. Research Serv. (Jan. 30, 2024), https://
www.congress.gov/crs-product/R45618. During that time,
Presidents used IEEPA to respond to a diverse range of
emergencies ranging from the 1979 Iranian hostage crisis,
see Exec. Order No. 12170, 44 Fed. Reg. 65,729 (Nov. 14,
1979), to foreign cyber hacking groups threatening U.S.
security, see Exec. Order No. 13694, 80 Fed. Reg. 18,077
(April 1, 2015).
Presidents have used IEEPA to block financial transactions with hostile actors, freeze assets, and to impose
targeted sanctions. V.O.S. Selections, 149 F.4th at 1335.
Yet between 1977 and 2024, not once did a President use
IEEPA to impose tariffs. The total absence of tariffs
for nearly fifty years reinforces the conclusion that the
statute does not authorize such measures. See Biden,
600 U.S. at 501 (rejecting Administration’s interpretation as “inconsistent with the statutory language and
past practice under the statute”); National Federation of
Independent Bus. v. Department of Labor, Occupational
22
Safety & Health Admin., 595 U.S. 109, 119–120 (2022) (per
curiam) (“This lack of historical precedent, coupled with
the breadth of authority that the [Government] now claims,
is a telling indication” that its reading of a statute is incorrect (cleaned up)); Dames & Moore, 453 U.S. at 669–674
(interpreting IEEPA considering past presidential action);
V.O.S. Selections, 149 F.4th at 1335 (same).
F.
Reading IEEPA’s power to “regulate” to
include a power to levy tariffs or other
surcharges would lead to unconstitutional and
absurd results.
The President claims authority to fundamentally upend Congress’s longstanding and constitutional power over
trade based on no more than the inclusion of the phrase
“regulate … importation or exportation” of property
included in a 1977 emergency powers statute. 50 U.S.C.
§ 1702(a)(1)(B). The power the President claims—to raise
or lower tariffs unbounded by any limits on geography,
rates, or the types of products covered—far exceeds
any authority that Congress has ever granted in a trade
statute. Congress does not “hide elephants” (broad tariff
authority) “in mouseholes” (a strained and unconstitutional interpretation of the term “regulate”). Whitman
v. American Trucking Assns., 531 U.S. 457, 468 (2001);
accord V.O.S. Selections, 149 F.4th at 1343 (Cunningham,
J., concurring).
To defend its reading of “regulate,” the Administration relies on case law holding Congress may impose
tariffs pursuant to Congress’s Foreign Commerce Clause
authority. Brief for Administration 24–25, 29–30. But
whether Congress has the power to impose tariffs under
23
the Foreign Commerce Clause is separate and apart from
whether Congress delegated that authority to the President; any such delegation must be clear and unequivocal,
not cryptic or tacit. See West Virginia, 597 U.S. at 723;
Biden, 600 U.S. at 500–501. And even when Congress
does use its power to “regulate” commerce, the power to
“regulate” does not include or incorporate the discrete and
more limited power to impose tariffs or other surcharges.
See National Federation of Independent Bus. v. Sebelius,
567 U.S. 519, 561–63 (2012) (Affordable Care Act’s individual mandate was permissible exercise of Congress’s
taxation power, even if it could not be sustained under its
discrete commerce power); V.O.S. Selections, 149 F.4th
at 1333 (same).
Further, reading “regulate” to implicitly include the
power to impose tariffs would produce untenable results:
it would require interpreting the same term differently
within the same clause of the statute because exports
cannot constitutionally be tariffed, and it could lead to
an assertion of broad presidential power to impose tariffs or similar surcharges on many types of cross-border
economic transactions.
Consider first the Export Clause problem. The President’s novel and expansive interpretation of “regulate”
would either violate the consistent usage principle or
render IEEPA unconstitutional. V.O.S. Selections, 149
F.4th at 1341–1342 (Cunningham, J., concurring). IEEPA
confers the power to “regulate” both imports and exports.
50 U.S.C. § 1702(a)(1)(B). Thus, in the President’s reading,
IEEPA must authorize “tariffs” on exports. Ibid. But the
Constitution expressly forbids export tariffs. U.S. Const.
Art. I, § 9, cl. 5 (“No Tax or Duty shall be laid on Articles
24
exported from any State.”). If “regulate imports” were
construed to include imposing tariffs, consistency would
require reading “regulate exports” the same way. V.O.S.
Selections, 149 F.4th at 1341–1342 (Cunningham, J., concurring). This latter scenario would plainly violate the
Constitution. See ibid.; U.S. Const. Art. I, § 9, cl. 5; A.G.
Spalding & Bros. v. Edwards, 262 U.S. 66, 69 (1923) (taxing exports is “forbidden … by the Constitution”). This
Court must avoid an interpretation of the statute that is
implausible and unconstitutional. See Sebelius, 567 U.S.
at 537–538, 574 (courts must construe a statute to save it
from unconstitutionality whenever possible); Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building & Constr.
Trades Council, 485 U.S. 568, 575 (1988) (same); National
Credit Union Admin. v. First Nat. Bank & Trust Co., 522
U.S. 479, 501 (1998) (“[S]imilar language contained within
the same section of a statute must be accorded a consistent meaning.”); Wisconsin Dept. of Revenue v. William
Wrigley, Jr., Co., 505 U.S. 214, 225–226 (1992) (similar).
The Administration’s position would also lead to absurd results. Congress routinely grants regulatory power
with no intention of conferring authority to impose tariffs.
V.O.S. Selections, 149 F.4th at 1333; see, e.g., Securities
Exchange Act of 1934, § 4(a), 15 U.S.C. § 78(d) (SEC’s
power to regulate); Communications Act of 1934, § 303,
47 U.S.C. § 303(e) (FCC’s power to regulate). These are
not grants of authority to impose or remove tariffs, and
the presumption of consistent usage requires treating the
term in IEEPA the same way. V.O.S. Selections, supra, at
1333; see, e.g., United States v. Penn, 63 F.4th 1305, 1313
(11th Cir. 2023) (courts “read terms consistently across
multiple statutes on the same subject”; “a legislative body
generally uses a particular word with a consistent mean-
25
ing in a given context” (cleaned up) (citing, inter alia, Erlenbaugh v. United States, 409 U.S. 239, 243–244 (1972))).
The Administration seeks to distinguish the use of the
word “regulate” in statutes like the SEC Act from that
term’s use in IEEPA by arguing the use of “regulate” in
these other statutes “does not naturally carry the same
inference or have the same pedigree” as the use of “regulate … importation or exportation” in 50 U.S.C. § 1702(b).
Brief for Administration 13, 31–32. But the Administration offers no textual basis for this distinction. The word
“regulate” does not transform into “tariff” or “surcharge”
simply because it appears near “importation” and “exportation.” The clear statement rule demands explicit
language, not interpretive bootstrapping. See Whitman,
531 U.S. at 468.
Further, construing the term “regulate” in IEEPA
to include tariff authority could have vast unintended
consequences. Section 1702(b) authorizes the President to
“regulate” not just “importation or exportation” but also
property “acquisition,” “transfer,” “withdrawal,” “transportation,” and numerous other transactions involving
foreign interests. If “regulate” means to “impose tariffs”
for imports, the President may next claim authority to
impose surcharges on all these other enumerated activities. See V.O.S. Selections, 149 F.4th at 1333. This type of
broad Executive Branch power over commerce is precisely
what the Framers sought to avoid when they granted
Congress, not the President, the authority to “regulate
commerce” and to “lay and collect Taxes, Duties, Imposts
and Excises.” U.S. Const. Art. 1, § 8, cls. 1, 3.
Rather than equate “regulate” with “tariff” or other
surcharges, this Court should construe “regulate ... im-
26
portation or exportation” in 50 U.S.C. § 1702(b) to mean
what the Government consistently used it to do between
1977 and early 2025: to regulate the manner or conditions
of imports or exports. With respect to sanctions programs,
the most common use of IEEPA, the U.S. Treasury Department has an extensive practice of issuing licenses to
individuals and companies to engage in transactions that
would otherwise be prohibited by IEEPA sanctions. For
example, the Treasury Department has issued regulations permitting Iranians coming to the U.S. to import
personal household effects subject to specified conditions,
despite a general IEEPA import and export ban on Iran.
Similar licenses exist across U.S. sanctions programs,
and companies can also apply for individual licenses that
would apply only to a specific firm or firms. This decadeslong practice confirms what the statutory text requires:
IEEPA authorizes the President to control whether and
how trade occurs during a declared emergency, not to
impose tariffs or other surcharges on it.
G. Courts have repeatedly held that IEEPA’s
delegation of congressional power to the
President should be narrowly construed.
Courts have repeatedly rejected the President’s erroneous interpretations of provisions of IEEPA and enjoined
his abuses of the statute. These courts have consistently
held that IEEPA’s delegation of congressional power
should be narrowly construed.
The Fifth Circuit rejected the Treasury Department’s
contention that the definition of “property” in the same
provision of IEEPA at issue here, 50 U.S.C. § 1702, encompassed cryptocurrency “smart contracts” and noted
27
that courts “discharge [their] duty by independently interpreting the statute and effectuating the will of Congress
subject to constitutional limits.” Van Loon v. Department
of the Treasury, 122 F.4th 549, 563 (5th Cir. 2024) (quoting Loper Bright v. Raimondo, 603 U.S. 369, 395 (2024))
(cleaned up).
In 2020, two federal district courts enjoined the President from using IEEPA to ban distribution of Chineseowned social media app TikTok, ruling that the ban on
TikTok likely exceeded the President’s authority under
the statute—giving the President no deference despite
IEEPA’s emergency powers. TikTok Inc. v. Trump, 507
F. Supp. 3d 92 (D.D.C. 2020); Marland v. Trump, 498 F.
Supp. 3d 624 (E.D. Pa. 2020).
Here, too, “because IEEPA does not authorize the
President to impose tariffs, the tariffs that derive from the
Challenged Orders are ultra vires.” Learning Resources,
784 F. Supp.3d at 230.
III. The President’s use of IEEPA as a trade statute
usurps Congress’s core constitutional powers.
The Administration attempts to defend its usurpation
of Congress’s power by arguing that IEEPA tariffs have
been essential to negotiating what the Administration
calls trade deals with foreign governments. But IEEPA
was never intended to provide the President with the
power to enter into trade deals, much less deals that
contravene existing law. His effort to use IEEPA for this
purpose further usurps Congress’s constitutionally committed power.
28
The President has no independent authority to enter
into binding agreements to regulate foreign commerce.
See U.S. Const. Art. I, § 8, cl. 3; United States–Taiwan
Initiative on 21st-Century Trade First Agreement Implementation Act, Pub. L. 118-13, § 2(7), 137 Stat. 63, 64
(2023), codified at 19 U.S.C. § 2112 note (“Article I, section 8, clause 3 of the Constitution of the United States
grants Congress authority over international trade. The
President lacks the authority to enter into binding trade
agreements absent approval from Congress.”); United
States v. Guy W. Capps, Inc., 204 F.2d 655, 659 (4th Cir.
1953) (striking down an executive agreement regulating
Canadian imports because “the power to regulate interstate and foreign commerce is not among the powers
incident to the presidential office”); see also Youngstown,
343 U.S. at 585 (“The President’s power, if any, … must
stem either from an act of Congress or from the Constitution itself.”).
IEEPA provides no process or authority to the President to change existing U.S. law, yet the “deals” the Administration has announced appear to contemplate that
the United States will raise duties on imports from trade
partner countries, which conflicts with statutes implementing trade agreements and tariff rates, including the
recently enacted U.S.–Mexico–Canada Agreement. 19
U.S.C. §§ 4501–4732; see also id., § 3521(c).
Nor can the Administration justify the use of IEEPA
tariffs to provide it with leverage to negotiate unauthorized trade deals. Relying on Dames & Moore, 453 U.S.
654, the Administration contends that “IEEPA permits
using property to ‘serve as a ‘bargaining chip’ to be used
by the President when dealing with a hostile country’.”
29
Brief for Administration 40. But in Dames & Moore, the
President nullified attachments and transferred frozen
Iranian government assets—actions the Court found were
both explicitly authorized by IEEPA and involved foreign
property already under presidential control. 453 U.S. at
673. Tariffs are not foreign assets that can be controlled
by the President. Tariffs are paid by American importers,
subject to Congress’s control over revenue and expenditures. And the President’s tariffs are applied to imports
from the United States’ closest allies, who are sworn to
defend the United States if we are under attack and with
whom we jointly share high-level intelligence—hardly
“hostile countr[ies].” See Brief for Administration 40
(quoting Dames & Moore, supra, at 673).
The President’s use of IEEPA for tariffs exceeds
not only the statute’s scope but also constitutional limits.
Power over “Taxes, Duties, Imposts and Excises” and
“Commerce with foreign nations” are core Congressional prerogatives. “[T]he question here is not whether
something should be done; it is who has the authority to
do it”—and how. Biden, 600 U.S. at 501.
Since the Nation’s founding, Congress has exercised
its constitutional responsibility over trade. The very first
U.S. Congress enacted the Tariff Act of 1789, 1 Stat. 24,
within its first months of existence. Since then, Congress
has enacted thousands of pages of trade and tariff statutes. In recent decades alone, Congress has approved 16
trade agreements with trading partners (including 14
still in force) and provided the President with a specific
negotiating mandate for all but one. Zirpoli, Congressional
and Executive Authority Over Foreign Trade Agreements
(2025), https://www.congress.gov/crs-product/R47679.
30
These include the U.S.–Mexico–Canada Agreement, 19
U.S.C. §§ 4501–4732, which President Trump negotiated
and which Congress enacted in 2020. Congress has also
enacted a series of tariff preference programs to promote
trade and economic development.4
The President’s claim that IEEPA allows him to
impose or remove sweeping tariffs—even in the absence
of any grant of authority from Congress—threatens to
undermine the tariff and trade law architecture that Congress has constructed through these and other laws. These
unlawful IEEPA tariffs do not merely modify the statutory tariffs Congress has promulgated and approved—
they have “abolished them and supplanted them with a new
regime entirely,” Biden, 600 U.S. at 496 (cleaned up)—and
have done so in the absence of any statutory delegation of
power by Congress.
The President’s actions are not consistent with the
lawful power Congress granted in IEEPA in 1977 nor
America’s constitutional structure. If the President believes that imposing, removing, or amending tariffs is an
appropriate policy measure, Congress has given him tools
to pursue those goals. 5 But IEEPA is not one of them.
4. See, e.g., the African Growth and Opportunity Act, 19
U.S.C. §§ 3701–3741; Caribbean Basin Economic Recovery Act,
id., §§ 2701–2707; Caribbean Basin Trade Partnership Act of
2000, id., §§ 2701–2707; Haitian Hemispheric Opportunity through
Partnership Encouragement (HOPE) Act of 2006, id., § 2703A;
Trade Facilitation and Trade Enforcement Act of 2015, Pub. L.
114-125, 130 Stat. 122.
5. Amici take no position as to whether any of the other
statutes discussed herein would permit the tariffs at issue. That
is a question for another day.
31
CONCLUSION
The Court should hold that IEEPA does not authorize
tariffs.
Respectfully submitted,
Jennifer Hillman
Peter Harrell
Georgetown University
Law Center
600 New Jersey Avenue NW
Washington, DC 20001
William Fred Norton
Nathan L. Walker
Josephine K. Petrick
Counsel of Record
Celine G. Purcell
Rebecca Kutlow
Emily Kirk
The Norton Law Firm PC
300 Frank H. Ogawa Plaza,
Suite 450
Oakland, California 94612
(510) 906-4900
jpetrick@nortonlaw.com
Counsel for Amici Curiae
October 24, 2025
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX — LIST OF AMICI CURIAE . . . . . . . . 1a
1a
APPENDIX — Appendix
LIST of AMICI CURIAE
MEMBERS OF THE U.S. SENATE
Senator Jeanne Shaheen
Senator Ron Wyden
New Hampshire
Oregon
Ranking Member
Ranking Member
Senate Foreign Relations
Senate Finance
Committee
Committee
Senator Charles E. Schumer
New York
Senate Minority Leader
Senator Tim Kaine
Virginia
Senator Ben Ray Luján
New Mexico
Senator Mark R. Warner
Virginia
Senator Jeffrey A. Merkley Senator Brian Schatz
Oregon
Hawaii
Senator Peter Welch
Vermont
Senator Angus S. King, Jr.
Maine
Senator Andy Kim
New Jersey
Senator Amy Klobuchar
Minnesota
Senator Richard Blumenthal Senator Michael F. Bennet
Connecticut
Colorado
Senator Christopher A. Coons Senator Jon Ossoff
Delaware
Georgia
Senator John Hickenlooper Senator
Colorado
Catherine Cortez Masto
Nevada
Senator Maria Cantwell
Washington
Senator Tammy Duckworth
Illinois
Senator Jacky Rosen
Nevada
Senator Chris Van Hollen
Maryland
2a
Appendix
Senator Raphael Warnock Senator
Georgia
Margaret Wood Hassan
New Hampshire
Senator Lisa Murkowski
Alaska
Senator Elissa Slotkin
Michigan
Senator Adam B. Schiff
California
Senator Alex Padilla
California
Senator Patty Murray
Washington
Senator Jack Reed
Rhode Island
Senator Mazie K. Hirono
Hawaii
Senator Edward J. Markey
Massachusetts
Senator Richard J. Durbin
Illinois
Senator Angela Alsobrooks
Maryland
Senator Kirsten Gillibrand
New York
Senator
Lisa Blunt Rochester
Delaware
3a
Appendix
MEMBERS OF THE U.S.
HOUSE OF REPRESENTATIVES
Jamie Raskin
Representative
of Maryland
Alma S. Adams, Ph.D.
Representative
of North Carolina
Richard E. Neal
Representative
of Massachusetts
Gabe Amo
Representative
of Rhode Island
Gregory W. Meeks
Representative
of New York
Jake Auchincloss
Representative
of Massachusetts
Hakeem Jeffries
Representative
of New York
Becca Balint
Representative
of Vermont
Katherine Clark
Representative
of Massachusetts
Nanette Barragán
Representative
of California
Pete Aguilar
Representative
of California
Joyce Beatty
Representative
of Ohio
Joe Neguse
Representative
of Colorado
Wesley Bell
Representative
of Missouri
Rosa L. DeLauro
Representative
of Connecticut
Ami Bera, M.D.
Representative
of California
Robert Garcia
Representative
of California
Donald S. Beyer Jr.
Representative
of Virginia
4a
Appendix
Sanford D. Bishop, Jr.
Representative
of Georgia
Kathy Castor
Representative
of Florida
Suzanne Bonamici
Representative
of Oregon
Joaquin Castro
Representative
of Texas
Brendan F. Boyle
Representative
of Pennsylvania
Sheila CherfilusMcCormick
Representative
of Florida
Shontel M. Brown
Representative
of Ohio
Julia Brownley
Representative
of California
Salud O. Carbajal
Representative
of California
André Carson
Representative
of Indiana
Troy A. Carter, Sr.
Representative
of Louisiana
Ed Case
Representative
of Hawaii
Sean Casten
Representative
of Illinois
Judy Chu
Representative
of California
Gilbert R. Cisneros, Jr.
Representative
of California
Emanuel Cleaver, II
Representative
of Missouri
James E. Clyburn
Representative
of South Carolina
Steve Cohen
Representative
of Tennessee
Herbert C. Conaway, Jr.
Representative
of New Jersey
J. Luis Correa
Representative
of California
5a
Appendix
Jim Costa
Representative
of California
Mark DeSaulnier
Representative
of California
Joe Courtney
Representative
of Connecticut
Maxine Dexter
Representative
of Oregon
Angie Craig
Representative
of Minnesota
Lloyd Doggett
Representative
of Texas
Jasmine Crockett
Representative
of Texas
Sarah Elfreth
Representative
of Maryland
Jason Crow
Representative
of Colorado
Veronica Escobar
Representative
of Texas
Sharice L. Davids
Representative
of Kansas
Adriano Espaillat
Representative
of New York
Danny K. Davis
Representative
of Illinois
Dwight Evans
Representative
of Pennsylvania
Madeleine Dean
Representative
of Pennsylvania
Lizzie Fletcher
Representative
of Texas
Diana DeGette
Representative
of Colorado
Bill Foster
Representative
of Illinois
Suzan K. DelBene
Representative
of Washington
Lois Frankel
Representative
of Florida
6a
Appendix
Laura Friedman
Representative
of California
Jahana Hayes
Representative
of Connecticut
John Garamendi
Representative
of California
Jim Himes
Representative
of Connecticut
Jesús G. “Chuy” García
Representative
of Illinois
Steven Horsford
Representative
of Nevada
Sylvia Garcia
Representative
of Texas
Steny H. Hoyer
Representative
of Maryland
Dan Goldman
Representative
of New York
Jared Huffman
Representative
of California
Jimmy Gomez
Representative
of California
Glenn F. Ivey
Representative
of Maryland
Maggie Goodlander
Representative
of New Hampshire
Jonathan L. Jackson
Representative
of Illinois
Josh Gottheimer
Representative
of New Jersey
Sara Jacobs
Representative
of California
Adelita Grijalva
Representative-Elect
of Arizona
Henry C. “Hank” Johnson, Jr.
Representative
of Georgia
Josh Harder
Representative
of California
Julie Johnson
Representative
of Texas
7a
Appendix
Sydney Kamlager-Dove
Representative
of California
Summer L. Lee
Representative
of Pennsylvania
Marcy Kaptur
Representative
of Ohio
Susie Lee
Representative
of Nevada
William Keating
Representative
of Massachusetts
Teresa Leger Fernández
Representative
of New Mexico
Robin L. Kelly
Representative
of Illinois
Mike Levin
Representative
of California
Timothy M. Kennedy
Representative
of New York
Sam T. Liccardo
Representative
of California
Ro Khanna
Representative
of California
Ted W. Lieu
Representative
of California
Raja Krishnamoorthi
Representative
of Illinois
Zoe Lofgren
Representative
of California
Rick Larsen
Representative
of Washington
Stephen F. Lynch
Representative
of Massachusetts
John B. Larson
Representative
of Connecticut
Seth Magaziner
Representative
of Rhode Island
George Latimer
Representative
of New York
Doris Matsui
Representative
of California
8a
Appendix
Lucy McBath
Representative
of Georgia
Dave Min
Representative
of California
Sarah McBride
Representative
of Delaware
Gwen S. Moore
Representative
of Wisconsin
April McClain Delaney
Representative
of Maryland
Joseph D. Morelle
Representative
of New York
Jennifer L. McClellan
Representative
of Virginia
Kelly Morrison
Representative
of Minnesota
Betty McCollum
Representative
of Minnesota
Jared Moskowitz
Representative
of Florida
Morgan McGarvey
Representative
of Kentucky
Seth Moulton
Representative
of Massachusetts
James P. McGovern
Representative
of Massachusetts
Kevin Mullin
Representative
of California
Robert J. Menendez
Representative
of New Jersey
Jerrold Nadler
Representative
of New York
Grace Meng
Representative
of New York
Eleanor Holmes Norton
Representative of the
District of Columbia
Kweisi Mfume
Representative
of Maryland
Johnny Olszewski
Representative
of Maryland
9a
Appendix
Frank Pallone, Jr.
Representative
of New Jersey
Delia C. Ramirez
Representative
of Illinois
Jimmy Panetta
Representative
of California
Emily Randall
Representative
of Washington
Chris Pappas
Representative
of New Hampshire
Luz M. Rivas
Representative
of California
Nancy Pelosi
Representative
of California
Deborah K. Ross
Representative
of North Carolina
Scott H. Peters
Representative
of California
Andrea Salinas
Representative
of Oregon
Brittany Pettersen
Representative
of Colorado
Linda T. Sánchez
Representative
of California
Chellie Pingree
Representative
of Maine
Mary Gay Scanlon
Representative
of Pennsylvania
Stacey E. Plaskett
Representative
of the Virgin Islands
Jan Schakowsky
Representative
of Illinois
Ayanna Pressley
Representative
of Massachusetts
Bradley Scott Schneider
Representative
of Illinois
Mike Quigley
Representative
of Illinois
Kim Schrier, M.D.
Representative
of Washington
10a
Appendix
Robert C. “Bobby” Scott Thomas R. Suozzi
Representative
Representative
of Virginia
of New York
Terri A. Sewell
Representative
of Alabama
Eric Swalwell
Representative
of California
Brad Sherman
Representative
of California
Mark Takano
Representative
of California
Mikie Sherrill
Representative
of New Jersey
Shri Thanedar
Representative
of Michigan
Lateefah Simon
Representative
of California
Bennie G. Thompson
Representative
of Mississippi
Adam Smith
Representative
of Washington
Mike Thompson
Representative
of California
Melanie A. Stansbury
Representative
of New Mexico
Dina Titus
Representative
of Nevada
Greg Stanton
Representative
of Arizona
Jill Tokuda
Representative
of Hawaii
Marilyn Strickland
Representative
of Washington
Paul D. Tonko
Representative
of New York
Suhas Subramanyam
Representative
of Virginia
Norma J. Torres
Representative
of California
11a
Appendix
Lori Trahan
Representative
of Massachusetts
Debbie Wasserman Schultz
Representative
of Florida
Derek T. Tran
Representative
of California
Maxine Waters
Representative
of California
Lauren Underwood
Representative
of Illinois
Bonnie Watson Coleman
Representative
of New Jersey
Juan Vargas
Representative
of California
James R. Walkinshaw
Representative
of Virginia
Marc A. Veasey
Representative
of Texas
Nikema Williams
Representative
of Georgia
Nydia M. Velázquez
Representative
of New York
Frederica S. Wilson
Representative
of Florida
Eugene Vindman
Representative
of Virginia
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.