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

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Nos. 24-1287, 25-250

IN THE

Supreme Court of the United States

LEARNING RESOURCES, INC., et al., Petitioners,

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

IN HIS OFFICIAL CAPACITY, et al., Respondents.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

et al., Petitioners,

V.O.S. SELECTIONS, INC., et al., Respondents.

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT AND ON WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FEDERAL CIRCUIT

BRIEF OF AMICI CURIAE SCHOLARS OF THE

HISTORY OF CONSTITUTIONAL LAW AND THE

PRESIDENCY IN SUPPORT OF PETITIONERS IN

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

PAUL R.Q. WOLFSON

Counsel of Record

POOJA A. BOISTURE

SOMIL B. TRIVEDI

AMY C. VICKERY

GILBERT G. ORBEA

DEMOCRACY FORWARD

FOUNDATION

P.O. Box 34553

Washington, DC 20043

(202) 448-9090

pwolfson@democracy

forward.org

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ……………………1

SUMMARY OF ARGUMENT ……………………….1

ARGUMENT …………………………………………...3

SINCE THE FOUNDING, CONGRESS HAS PLAYED THE

CENTRAL ROLE IN REGULATING

TARIFFS

………………………………………………………..3

II. CONGRESS DID NOT SURRENDER ITS TRADE AUTHORITY WITH THE EMERGENCE OF CIRCUMSCRIBED DELEGATIONS TO THE EXECUTIVE IN THE

TWENTIETH CENTURY …………………………….9

III. WHEN NIXON TESTED THE LIMITS OF THE EXECUTIVE’S TARIFF-RELATED AUTHORITY, CONGRESS RESPONDED WITH RESTRICTION………………….. 15

IV. THE HISTORY OF CONGRESS’S TARIFF AUTHORI-TY

AND ITS RESTRICTIONS ON THE EXECUTIVE’S TARIFFRELATED AUTHORIZATIONS DEMON-STRATE THAT THE

TARIFFS AT ISSUE HERE PRE-SENT A MAJOR QUESTION……………………………………………………. 23

CONCLUSION………………………………………. 30

APPENDIX: LIST OF AMICI CURIAE ………... 1a

TABLE OF AUTHORITIES

Page(s)

CASES

Ala. Ass’n of Realtors v. HHS, 594 U.S. 758 (2021)

........................................................................ 29

Biden v. Nebraska, 600 U.S. 477 (2023) .. 26, 27, 29,

Fed. Energy Admin. v. Algonquin, 426 U.S. 548

(1976) ............................................................. 15

INS v. Chadha, 462 U.S. 919 (1983) ..................... 21

J.W. Hampton, Jr., & Co. v. United States, 276

U.S. 394 (1928) .............................................. 26

Louisiana v. Biden, 55 F.4th 1017 (5th Cir. 2022)

........................................................................ 25

Mayborn Grp., Ltd. v. Int’l Trade Comm’n, 965

F.3d 1350 (Fed. Cir. 2020) ............................. 11

Trump v. Wilcox, 145 S. Ct. 1415 (2025) .............. 25

United States v. Yoshida Int’l, Inc., 526 F.2d 560

(C.C.P.A. 1975) .................................. 18, 19, 26

Util. Air Reg. Grp. v. EPA, 573 U.S. 302 (2014) .. 24,

25, 29

West Virginia v. EPA, 597 U.S. 697 (2022).... 25, 27,

28, 29

iii

Yoshida Int’l, Inc. v. United States, 378 F. Supp.

1155 (Cust. Ct. 1974) ..................................... 17

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952) ........................................................ 2

CONSTITUTIONAL PROVISIONS

Article I

§ 2....................................................................... 5

§ 5..................................................................... 25

§ 8....................................................................... 5

STATUTES

12 U.S.C.

§ 95................................................................... 11

§ 4301 ............................................................... 11

19 U.S.C.

§ 1352(c) ........................................................... 14

§ 1862 ............................................................... 15

§ 2132(a) .......................................................... 19

§ 2132(c)(1)(B) ................................................. 19

50 U.S.C § 1701(a)-(b) ........................................... 24

50 U.S.C.

§ 1601(a) .......................................................... 21

§ 1622 ............................................................... 21

§ 1701(b) .......................................................... 22

Emergency Banking Act of 1933, Pub. L. No. 73-1,

§ 2, 48 Stat. 1 (1933) ................................ 13, 14

Revenue Act of 1913, Pub. L. No. 71-361, 38 Stat.

114 .................................................................. 10

South Carolina

Stat. § 1978 (1975) .......................................... 11

Tariff Act of 1930, Pub. L. No. 71-361, 46 Stat. 590

........................................................................ 10

Trade Expansion Act of 1962, Pub. L. No. 87-794,

§ 232, 76 Stat. 872, 877 (1962) ...................... 15

Trading with the Enemy Act of 1917, Pub. L. No.

65-91, 40 Stat. 411 .............................................. 11

United States International Trade Commission).

Revenue Act of 1916, Pub. L. No. 64-271, §

700, 39 Stat. 756, 795 .................................... 11

OTHER AUTHORITIES

4 Annals of Cong. 209-225 (1794) ........................... 7

36 Fed. Reg. 15724 (Aug. 15, 1971) ................ 17, 18

55 Cong. Rec. 4908 (1917) ..................................... 12

95 Cong. Rec. 425 (1977) ....................................... 21

95 Cong. Rec. 7218 (1977) ..................................... 22

Andrew Reamer, Before the U.S. Tariff

Commission: Congressional Efforts to Obtain

Statistics and Analysis for Tariff-Setting,

1789-1916, in A Centennial History of the

United States International Trade

Commission, USITC Pub. 4744, at 42 (Nov.

2017), https://perma.cc/4EK9-CN9Q ........ 6, 10

Articles of Confederation of 1781, arts. VIII, IX .... 4

Christopher A. Casey, IF11030, Cong. Rsch. Serv.,

U.S. Tariff Policy: Overview (2025),

https://perma.cc/TPE4-Z7A8 ......................... 10

Declaration and Resolves of the First Continental

Congress, Resol. 4 (1774), reprinted by Lillian

Goldman L. Libr., Yale Law Sch.,

https://perma.cc/HB92-LJ5T ........................... 3

Douglas A. Irwin, Antebellum Tariff Politics:

Coalition Formation and Shifting Regional

Interests 3-4 (Nat’l Bureau of Econ. Rsch.,

Working Paper No. 12161, 2006),

https://www.nber.org/system/files/working_pa

pers/w12161/w12161.pdf ................................. 8

Douglas A. Irwin, Clashing Over Commerce: A

History of U.S. Trade Policy 424-25 (2017) . 13,

14, 15, 16, 18, 19, 20

Douglas A. Irwin, Revenue or Reciprocity?

Founding Feuds over Early U.S. Trade Policy

17 (Nat’l Bureau of Econ. Rsch., Working

Paper No. 15144, 2009),

https://perma.cc/45S4-4WGK ...................... 6, 7

Douglas A. Irwin, The Nixon Shock After Forty

Years: The Import Surcharge Revisited, 25-26

(Nat’l Bureau of Econ. Rsch., Working Paper

No. 17749, 2012), https://perma.cc/5QZWR3SG .............................................................. 18

Douglas A. Irwin, Trade Policy in American

Economic History, 12 Ann. Rev. Econ. 23, 41

(2020) ........................................................... 8, 9

Douglas Irwin, The Nixon Shock and the Trading

System, The Int’l Econ., Summer 2021, at 33,

https://perma.cc/7A8N-SZ7G......................... 16

Edward S. Miller, Bankrupting the Enemy 6 (2007)

........................................................................ 11

Emergency Controls on International Economic

Transactions: Hearing on H.R. 1560 and H.R.

2382 Before the H. Subcomm. On Int’l Econ.

Pol’y

& Trade of the H. Comm. on Int’l Rels., 95th

Cong. 1 (1977) ................................................ 11

Exec. Order No. 13,786, 82 Fed. Reg. 16721 ........ 29

Executive Order No. 11,615, 36 Fed. Reg. 15722

(Aug. 17, 1971); Richard Nixon, Address to the

Nation Outlining a New Economic Policy:

“The Challenge of Peace,” reprinted by The

Am. Presidency Project (Aug. 15, 1971),

https://perma.cc/U9NP-LK82. ...................... 17

vii

Grace Yarrow & Meredith Lee Hill, Trump Says

He’ll Use Tariff Revenue to Bail Out Farmers,

Politico (Sept. 25, 2025),

https://perma.cc/W3V7-ABB4 ....................... 27

H.R. Rep. No. 95-459, at 2 (1977) ......................... 22

H.R. Rep. No. 95-459, at 7 (1977) ......................... 24

H.R. Rep. No. 95-459, at 10 (1977) ....................... 22

Harold Hongju Koh, Congressional Controls on

Presidential Trade Policymaking After I.N.S.

v. Chadha, 18 N.Y.U. J. Int'l L. & Pol. 1191,

1195 (1986) .................................................... 14

History, Art & Archives, U.S. House of

Representatives, The McKinley Tariff of 1890,

https://perma.cc/9HBC-PUFW (last visited

Oct. 23, 2025) ................................................... 9

J.F. Hornbeck & William H. Cooper, Cong. Rsch.

Serv., RL33743, Trade Promotion Authority

(TPA) and the Role of Congress in Trade

Policy 3 (2010),

https://www.congress.gov/crs_external_produc

ts/RL/PDF/RL33743/RL33743.51.pdf 7, 15, 34,

James Madison, Import and Tonnage Duties, 1

Annals of Cong. 107 (1789) (Joseph Gales ed.,

1834) ................................................................. 6

viii

Jimmy Carter, Presidential War Powers Bill

Statement on Signing H.R. 7738 Into Law

reprinted by The Am. Presidency Project (Dec.

28, 1977), https://perma.cc/Q6CY-HU9Z ...... 23

John M. Dobson, Two Centuries of Tariffs: The

Background and Emergence of the U.S.

International Trade Commission, USITC,

Pub. T-PURL GPO171219, at 1 (Dec. 1976),

https://www.govinfo.gov/content/pkg/GOVPUB

-T-PURL-gpo171219/pdf/GOVPUB-T-PURLgpo171219.pdf ................................................ 10

Joseph J. Thorndike, Nixon and Trump: United by

Tough Talk and Even Tougher Tariffs,

TaxNotes (Mar. 10, 2025),

https://www.taxnotes.com/lr/resolve/taxhistory-project/nixon-and-trump-united-bytough-talk-and-even-tougher-tariffs/7rkyf ... 16

Joseph J. Thorndike, Tax History: Trump Ignores

Inconvenient Facts About ‘Tariff Sheriff’

McKinley, TaxNotes (Feb. 3, 2025),

https://perma.cc/RG4C-UGPH ........................ 9

Kathleen Claussen & Timothy Meyer, The Foreign

Commerce Power, Duke L. Sch. Pub. L. &

Legal Theory Series No. 2025-44, at 49 (rev.

Sept. 8, 2025), https://perma.cc/RGN8-893L 20

Koh, 18 N.Y.U. J. Int’l L. & Pol. at 1201 .............. 19

Letter from George Washington to George William

Fairfax (June 10-15, 1774), reprinted by Nat’l

Archives: Founders Online,

https://perma.cc/YQ2T-QBLA ......................... 3

Letter from Thomas Jefferson to James Madison

(Apr. 3, 1794) ................................................... 7

Macrotrends, U.S. Trade Balance (last visited Oct.

21, 2025), https://perma.cc/X5M5-ZUAD ...... 28

Martin Crutsinger, US Trade Deficit Surges in

July to Highest in 12 Years, Assoc. Press

(Sept. 3, 2020), https://perma.cc/D66S-VSA3 29

Notice of Action and Request for Public Comment

Concerning Proposed Determination of Action

Pursuant to Section 301: China’s Acts,

Policies, and Practices Related to Technology

Transfer, Intellectual Property, and

Innovation, 83 Fed. Reg. 28710 (June 20,

2018) ............................................................... 28

Parliamentary Taxation of Colonies, International

Trade, and the American Revolution, 17631775, Office of the Historian, Dep’t of State,

https://perma.cc/729R-6ME7 (last visited Oct.

22, 2025) ........................................................... 4

Phill Swagel, An Update About CBO’s Projections

of the Budgetary Effects of Tariffs, Cong.

Budget Off. (Aug. 22, 2025),

https://perma.cc/7QLY-8HC9 ........................ 27

Phillip W. Magness, The Problem of the Tariff in

American Economic History, 1787-1934,

CATO Inst. (Sept. 26, 2023),

https://perma.cc/B9N2-LDLN ......................... 6

President Trump Approves Relief for U.S. Washing

Machine and Solar Cell Manufacturers, Off. of

the U.S. Trade Rep. (Jan. 22, 2018),

https://perma.cc/Q57T-9CLG ........................ 28

Proclamation 4098, 36 Fed. Reg. 24,201 (Dec. 20,

1971) ............................................................... 18

Proclamation No. 9704, 83 Fed. Reg. 11619 (Mar.

8, 2018) ........................................................... 28

Proclamation No. 9705, 83 Fed. Reg. 11625 (Mar.

8, 2018) ........................................................... 28

Raymond Moley, The First New Deal 147 (1966) . 13

Reciprocal Trade Agreements Act (RTAA), Pub. L.

No. 73-316, 48 Stat. 943 (1934) ..................... 13

Report on the Boston Tea Party, Boston Gazette,

Dec. 20, 1773, reprinted by The Gilder

Lehrman Inst. of Am. Hist.,

https://perma.cc/8SMX-WH63......................... 3

Richard Nixon, Special Message to the Congress

Proposing Trade Reform Legislation, reprinted

by The Am. Presidency Project (Apr. 10,

1973),

https://www.presidency.ucsb.edu/documents/s

pecial-message-the-congress-proposing-tradereform-legislation .......................................... 18

S. Comm. on Commerce, Report on the Trading

with the Enemy Act in National Bank of

Commerce in New York, Trading with the

Enemy Act, 37 (1917), https://perma.cc/ZA9ES94X ............................................................... 12

S. Rep. No. 93-1298, at 7196 (1974) ................ 18, 20

S. Rep. No. 94-922, at 1 (1976) .............................. 21

S. Rep. No. 95-466, at 2 (1977) .............................. 22

S. Res. 242, 93d Cong. (1974) ................................ 22

S.C. Ordinance of Nullification (Nov. 24, 1832),

reprinted by Proceedings of the Convention of

South Carolina Upon the Subject of

Nullification 26-28 (1832) ............................... 8

Sandra Kollen Ghizoni, Nixon Ends Convertibility

of U.S. Dollars to Gold and Announces

Wage/Price Controls, Fed. Rsrv. Hist. (Nov.

22, 2013), https://perma.cc/4XHE-PA7M ...... 16

Scott Bomboy, A Brief History of the Constitution

and Tariffs, Nat’l Const. Ctr. (Feb. 7, 2025),

https://perma.cc/PD33-7PA9 ........................... 5

xii

Stephen Greene, Emergency Banking Act of 1933,

Fed. Rsrv. Hist. (Nov. 22, 2013),

https://perma.cc/RSY6-PGW4 ....................... 13

Tariff Acts Passed by the Congress of the United

States from 1789 to 1895, S. Doc. No. 54-219,

1st Sess. (1896) (Prefatory Note) .................... 5

Tariff Acts Passed by the Congress of the United

States from 1789 to 1909, H.R. Doc. No. 61671 (1909) ........................................................ 7

Tariffs, The Budget Lab at Yale (Sept. 26, 2025),

https://perma.cc/7QLZ-GSBC ........................ 28

The Declaration of Independence para. 19, 2 (U.S.

1776) ................................................................. 4

The Federalist No. 21 (Alexander Hamilton) ..... 4, 5

The Federalist No. 33 (Alexander Hamilton) ......... 5

The Petition of Right (1627), 3 Car. 1, c.1, § VIII,

reprinted by Inst. of Hist. Rsch., Univ. of

London, https://perma.cc/2T9B-DSE3 ............ 4

The White House (@WhiteHouse), X (Aug. 31,

2025, 11:06 AM), https://perma.cc/36FJ-5P27

........................................................................ 27

TWEA, §§ 3(a), 3(c), 4(a), 6, 40 Stat. at 412-413,

415 ............................................................ 11, 12

xiii

Wolff, Evolution of the Executive-Legislative

Relationship in the Trade Act of 1974, 19

SAIS Rev. of Int’l Affs. at 20-21 .............. 20, 21

INTEREST OF AMICI CURIAE1

Amici are prominent scholars of the history of constitutional law and the presidency. They submit this

brief to synthesize the relevant history of congressional delegations to, and corresponding restrictions

on, the Executive relating to tariff authority. In

providing that analysis, this brief also details the major political and economic significance of Congress’s

careful delegation of tariff power, an issue that has

been divisive throughout our nation’s history. An examination of that history makes clear that the major

questions doctrine applies to the issue of the Executive’s invocation of tariff authority at issue here. A full

list of amici is attached as an appendix to this brief.

SUMMARY OF ARGUMENT

Tariff authority has rested squarely with the legislative branch since the nation’s founding, and the extent of Congress’s delegation to the President of that

authority is one of the nation’s first and most enduring

major questions of governance. From the first Tariff

Act of 1789 onward, tariff setting has been understood

as a legislative function, though one that Congress

can, and periodically has, allowed the President to administer—but only within defined bounds. Those

bounds have expanded or contracted over the course of

American history, as Congress has sought to balance

the need for executive agility with the constitutional

imperative of legislative control over the taxing power.

But what has not changed is the fundamental

1 No counsel for a party authored this brief in whole or in

part, and no entity or person, other than amici curiae and their

counsel, made a monetary contribution intended to fund the preparation or submission of this brief.

importance of tariff questions to both the economy

and, more broadly, American society.

The modern legislative framework reflects Congress’s deliberate turn toward restraint of Executive

authority. Jolted by President Nixon’s levy of a global

ten-percent tariff to address international monetary

stresses caused by overvaluation of the dollar, Congress responded by enacting a series of reforms,

namely the Trade Act of 1974, the National Emergencies Act of 1976 (NEA), and the International Emergency Economic Powers Act of 1977 (IEEPA). These

reforms were intended to guard against the possibility

of Presidents misusing tariff-related powers authorized for emergencies to remake domestic economic policy. To read these measures, as conferring unfettered

tariff authority on the President is to turn them on

their head. Just as Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579 (1952), marked the judiciary’s

recognition that emergencies do not erase constitutional boundaries, the Trade Act of 1974, NEA, and

IEEPA represent Congress’s own structural response

to the same concern.

Given the constitutional grounding and direct involvement of Congress in shaping the scope of the

President’s authority and discretion over tariffs, the

major questions doctrine applies to the President’s

claim of unilateral and limitless tariff authority under

IEEPA. That doctrine applies when an executive entity has used its authority to decide an important question of policy that the Constitution and democratic

principles indicate belongs to Congress. In such cases,

this Court has insisted on a clear delegation by Congress of authority to decide the question. Here, we

have the opposite—a recognition by Congress from the

early days of the Nation forward that tariffs are a matter of gripping domestic concern and that any authority delegated to the President must be constrained.

The President has far exceeded the confines of his

tariff authority in IEEPA, and respect for Congress requires that the tariffs at issue be struck down.

ARGUMENT

I. SINCE THE FOUNDING, CONGRESS HAS PLAYED

THE CENTRAL ROLE IN REGULATING TARIFFS

Tariff policy, and the balance of tariff authority between the legislative and executive branches, have

been fundamental issues of policy and politics since

our Nation’s inception. The Boston Tea Party—one of

the first major acts of rebellion against British rule—

was a protest over tariffs on tea. Report on the Boston

Tea Party, Boston Gazette, Dec. 20, 1773, reprinted by

The Gilder Lehrman Inst. of Am. Hist.,

https://perma.cc/8SMX-WH63. The Tea Party manifested colonists’ larger displeasure with taxation without representation. See Declaration and Resolves of

the First Continental Congress, Resol. 4 (1774), reprinted by Lillian Goldman L. Libr., Yale Law Sch.,

https://perma.cc/HB92-LJ5T (denouncing “every idea

of taxation internal or external, for raising a revenue

on the subjects, in America, without their consent”).

This explosive tariff protest set the colonies on a path

to revolution and “the cause of Boston … ever will be

consider[e]d as the cause of America.” Letter from

George Washington to George William Fairfax (June

10-15, 1774), reprinted by Nat’l Archives: Founders

Online, https://perma.cc/YQ2T-QBLA.

The Framers knew that British mercantilist policies had played a fundamental role in colonial demands for independence. See The Declaration of Independence paras. 19, 2 (U.S. 1776) (enumerating Britain’s imposition of “Taxes on us without our Consent”

as one of the offenses creating “an absolute Tyranny

over these States”); Parliamentary Taxation of Colonies, International Trade, and the American Revolution, 1763-1775, Office of the Historian, Dep’t of State,

https://perma.cc/729R-6ME7 (last visited Oct. 22,

2025). Indeed, the Declaration of Independence drew

on a long constitutional tradition, beginning with Parliament’s Petition of Right, that condemned the

Crown’s imposition of taxes and duties without legislative consent. The Declaration of Independence para.

19; The Petition of Right (1627), 3 Car. 1, c.1, § VIII,

reprinted by Inst. of Hist. Rsch., Univ. of London,

https://perma.cc/2T9B-DSE3 (“[T]hat no man hereafter be compelled to make or yeild any Guift Loane Benevolence Taxe or such like Charge without com[m]on

consent by Acte of Parliament.”). But the Framers also

knew that the Articles of Confederation had not established a sufficient method for funding the national

government. See, e.g., The Federalist No. 21 (Alexander Hamilton). This was in part because the Articles

had not empowered the national government to impose taxes or to regulate foreign commerce. See Articles of Confederation of 1781, arts. VIII (providing

taxes “shall be laid and levied by the authority and direction of the legislatures of the several states within

the time agreed upon by the united states in congress

assembled”), IX (providing “no treaty of commerce

shall be made, whereby the legislative power of the respective states shall be restrained from imposing such

imposts and duties on foreigners”). The Framers

determined to remedy this deficit in the Articles with

the new Constitution. For example, Alexander Hamilton homed in on tariffs and excises as an expedient

and equitable way to raise federal revenue in a manner that would avoid inequality among the States. The

Federalist No. 21 (“There is no method of steering

clear of” inequality among the States, “but by authorizing the national government to raise its own revenues” through “[i]mposts, excises, and, in general, all

duties upon articles of consumption.”).

When these Framers drafted the Constitution,

they unmistakably assigned to Congress the authority

to “regulate Commerce with foreign Nations” and to

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

U.S. Const. art. I, § 8, cls.1, 3; see also The Federalist

No. 33 (Alexander Hamilton) (“What is the power of

laying and collecting taxes, but a LEGISLATIVE

POWER, or a power of MAKING LAWS, to lay and collect taxes?”). The necessity for providing a national

revenue was the first major consideration of the new

Congress in 1789. Scott Bomboy, A Brief History of the

Constitution and Tariffs, Nat’l Const. Ctr. (Feb. 7,

2025), https://perma.cc/PD33-7PA9; Tariff Acts Passed

by the Congress of the United States from 1789 to 1895,

S. Doc. No. 54-219, 1st Sess. (1896) (Prefatory Note).

Because direct taxes under the new Constitution had

to be apportioned among the states, U.S. Const. art. I,

§ 2, cl. 3, tariffs remained the obvious choice. James

Madison introduced the subject of the tariff, specifically tying it to the collection of revenue:

[A] national revenue must be obtained; but the

system must be such a one, that, while it secures the object of revenue, it shall not be oppressive to our constituents: Happy it is for us

that such a system is within our power; for I

apprehend that both these objects may be obtained from an impost on articles imported

into the United States.

James Madison, Import and Tonnage Duties, 1 Annals

of Cong. 107 (1789) (Joseph Gales ed., 1834). The Tariff Act of 1789 was just the second act of Congress,

Douglas A. Irwin, Revenue or Reciprocity? Founding

Feuds over Early U.S. Trade Policy 17 (Nat’l Bureau

of Econ. Rsch., Working Paper No. 15144, 2009),

https://perma.cc/45S4-4WGK, and it was passed two

months before Congress created the Treasury Department, see Andrew Reamer, Before the U.S. Tariff Commission: Congressional Efforts to Obtain Statistics and

Analysis for Tariff-Setting, 1789-1916, in A Centennial

History of the United States International Trade Commission, USITC Pub. 4744, at 42 (Nov. 2017),

https://perma.cc/4EK9-CN9Q.

But despite the “broad consensus that import duties should be the principal source of revenue,” and

that Congress had the authority to impose those duties, other aspects of tariff policy were immediately divisive. See generally Irwin, Revenue or Reciprocity?;

see also Phillip W. Magness, The Problem of the Tariff

in American Economic History, 1787-1934, CATO Inst.

(Sept. 26, 2023), https://perma.cc/B9N2-LDLN. Specifically, there was ongoing policy disagreement among

the Framers as to whether tariffs should be used to

raise revenue only, or “as a tool for achieving reciprocal market access” as well. Irwin, Revenue or Reciprocity?, at 2. In the early years of the Republic, Madison

(in the House) and Thomas Jefferson (as Secretary of

State) advocated for a policy of discriminatory tariffs

against Britain to force improvements in its treatment

of American goods, while Hamilton (as Secretary of the

Treasury) focused on using tariffs for maximizing revenue. Id. at 24-26. The House floor was the arena for

this policy debate. Compare 4 Annals of Cong. 209-225

(1794) (James Madison speech), with id. at 174-209

(Representative William Loughton Smith speech).2

The contours of this debate demonstrate that tariff issues were fundamental to national governance—and

potentially explosive—since the outset.

For the roughly 150 years that followed, Congress

assiduously exercised its authority over foreign trade

and revenues; indeed, Congress set every tariff imposed on imported products. See Tariff Acts Passed by

the Congress of the United States from 1789 to 1909,

H.R. Doc. No. 61-671 (1909) (compiling over 260 congressional acts, joint resolutions, and proclamations

on tariffs); J.F. Hornbeck & William H. Cooper, Cong.

Rsch. Serv., RL33743, Trade Promotion Authority

(TPA) and the Role of Congress in Trade Policy 3

(2010), https://www.congress.gov/crs_external_products/RL/PDF/RL33743/RL33743.51.pdf. As the United

States’ manufacturing industrial base emerged, so too

did a great and enduring congressional debate over

protectionism as a trade policy. See Irwin, Revenue or

Reciprocity?, at 17. Northern manufacturing regions

contained import-competing industries, and thus benefitted from protectionist tariffs, while southern

Demonstrating the legislative prerogative over tariffs,

Hamilton had to deliver his policy perspective via congressional

surrogate. See, e.g., Irwin, Revenue or Reciprocity?, at 33 n.41

(quoting Letter from Thomas Jefferson to James Madison (Apr.

3, 1794) (“I am at no loss to ascribe [Representative] Smith’s

speech to it’s [sic] true father. Every title of it is Hamilton’s except

the introduction.”)).

agricultural regions exported raw materials and imported manufactured goods, and thus benefitted from

low tariffs. See Hornbeck & Cooper, Trade Promotion

Authority 3; see also Douglas A. Irwin, Trade Policy in

American Economic History, 12 Ann. Rev. Econ. 23, 41

(2020). Consequently, until the Smoot-Hawley Tariff

Act in 1930, Congressional voting on trade measures

pitted region-against-region (South vs. Northeast),

sector-against-sector (industrialists vs. agriculturalists), and class-against-class (producers vs. consumers).3 Irwin, Trade Policy in American Economic History, 12 Ann. Rev. Econ. at 26-31; see also Douglas A.

Irwin, Antebellum Tariff Politics: Coalition Formation

and Shifting Regional Interests 3-4 (Nat’l Bureau of

Econ. Rsch., Working Paper No. 12161, 2006),

https://www.nber.org/system/files/working_papers/w12161/w12161.pdf (“At the risk of oversimplification, the United States during [the antebellum] period consisted of three regions–the North, the South,

and the West. Each region had strikingly different

preferences over tariff policy, which was one of the

most controversial political issue[s] of the day, perhaps second only to slavery.”).

The political stakes of tariffs over this period were

extremely high, even existential. During the “Nullification Crisis” of 1832, for example, South Carolina declared null and void the tariffs passed by Congress in

1828 and 1832, and even contemplated seceding from

the Union over them. S.C. Ordinance of Nullification

(Nov. 24, 1832), reprinted by Proceedings of the

3 As explained, infra, the Smoot-Hawley Tariff Act of 1930

was the last time Congress revised the entire tariff schedule. Irwin, Trade Policy in American Economic History, 12 Ann. Rev.

Econ. 41.

Convention of South Carolina Upon the Subject of Nullification 26-28 (1832) (declaring these tariffs to be

“unauthorized by the Constitution of the United

States” and “the people of this state will … forthwith

proceed to organize a separate government”). These

types of disputes in Congress, where “one side or the

other” was always “complaining that the country

would be ruined if tariffs were not raised higher or

lowered further,” endured. Irwin, Trade Policy in

American Economic History, 12 Ann. Rev. Econ. at 31.

But, throughout, Congress set the tariffs, and its members were politically accountable for them—indeed,

following the Tariff Act of 1890 (commonly referred to

as the McKinley Tariff Act), William McKinley himself

lost congressional reelection, and his Republican party

suffered significant losses in the House, in large part

due to tariff backlash. Joseph J. Thorndike, Tax History: Trump Ignores Inconvenient Facts About ‘Tariff

Sheriff’ McKinley, TaxNotes (Feb. 3, 2025),

https://perma.cc/RG4C-UGPH; History, Art & Archives, U.S. House of Representatives, The McKinley

Tariff of 1890, https://perma.cc/9HBC-PUFW (last visited Oct. 23, 2025).

As this history demonstrates, tariffs were a significant issue of contention and tension in our nation, one

over which Congress exclusively maintained control.

II. CONGRESS DID NOT SURRENDER ITS TRADE AUTHORITY WITH THE EMERGENCE OF CIRCUMSCRIBED DELEGATIONS TO THE EXECUTIVE IN

THE TWENTIETH CENTURY

The twentieth century saw an expansion in congressional delegations of tariff authority to the President. The growth of the U.S. economy and

international trade increased the complexity of Congress’s tariff-setting task. And worldwide warfare and

the effects of the Great Depression spurred Congress

towards a model of economic regulation that embraced

more agile executive decision-making. But even within

this context, Congress maintained limits on the tariff

powers it assigned to the President, and retained

broad tariff authority for itself.

Following the enactment of the Sixteenth Amendment in 1913, Congress substantially shifted its revenue policies by reducing tariff rates and reestablishing

the Federal income tax, see Revenue Act of 1913, Pub.

L. No. 71-361, 38 Stat. 114; as a result, revenue from

customs duties declined from the majority of federal

revenue to just one-to-two percent of it.4 See

John M. Dobson, Two Centuries of Tariffs: The Background and Emergence of the U.S. International Trade

Commission, USITC, Pub. T-PURL GPO171219, at 1

(Dec.

1976),

https://www.govinfo.gov/content/pkg/GOVPUB-T-PURLgpo171219/pdf/GOVPUB-T-PURL-gpo171219.pdf.

Yet, “the complexity of Congress’s tariff-setting

task” only grew due to economic developments. See

Reamer, Before the U.S. Tariff Commission 34. Thus,

whereas the Tariff Act of 1789 was three pages long,

the Smoot-Hawley Act of 1930, the last general tariff

legislation passed by Congress, was nearly 200 pages

and set tariff levels for nearly 3,300 items. Id. (discussing Tariff Act of 1930, Pub. L. No. 71-361, 46 Stat.

590). To keep up with the ever-increasing complexity

4 It has remained at that level for the past seventy years. See

Christopher A. Casey, IF11030, Cong. Rsch. Serv., U.S. Tariff

Policy: Overview (2025), https://perma.cc/TPE4-Z7A8.

of the U.S. economy and international trade, in 1916

Congress established the United States Tariff Commission (now known as the United States International Trade Commission). Revenue Act of 1916, Pub.

L. No. 64-271, § 700, 39 Stat. 756, 795; see also Trade

Act of 1974, Pub. L. No. 93-618, § 171(a), 88 Stat. 1978,

2009 (1975). The Commission maintains the United

States tariff schedule, among other functions, but it

does not usurp actual congressional power as “[t]he

Commission may only act pursuant to powers granted

to it by Congress.” Mayborn Grp., Ltd. v. Int’l Trade

Comm’n, 965 F.3d 1350, 1355 (Fed. Cir. 2020).

After the United States’ entry into World War I,

Congress passed the Trading with the Enemy Act of

1917 (TWEA), Pub. L. No. 65-91, 40 Stat. 411 (current

version at 12 U.S.C. § 95 and 12 U.S.C. §§ 4301-4341),

as a wartime measure. TWEA focused on “defin[ing],

regulat[ing], and punish[ing] trading” with America’s

wartime enemies. Emergency Controls on International Economic Transactions: Hearing on H.R. 1560

and H.R. 2382 Before the H. Subcomm. On Int’l Econ.

Pol’y & Trade of the H. Comm. on Int’l Rels., 95th

Cong. 1 (1977) (statement by Rep. Jonathan B. Bingham). It limited trade, transactions, and communications with enemies or allies of enemies, regulated enemy-owned insurance companies, and provided a

scheme for appropriating foreign-owned money and

property. See TWEA, §§ 3(a), 3(c), 4(a), 6, 40 Stat. at

412-413, 415. Section 5(b) of the Act—an amendment

passed with no discussion in the Congressional Record5—provided the President the power to

5 Edward S. Miller, Bankrupting the Enemy 6 (2007). Con-

temporary analyses of Section 5(b) saw it as having little importance. Id. at 7 (“In February 1918 an authoritative 485-page

“investigate, regulate, or prohibit, under such rules

and regulations as he may prescribe … any transactions in foreign exchange, … whether enemy, ally of

enemy, or otherwise … by any person within the

United States.” Id. § 5(b), 40 Stat. at 415. At the time

of its passage, the legislation was widely understood

as addressing concerns arising from World War I. See

S. Comm. on Commerce, Report on the Trading with

the Enemy Act in National Bank of Commerce in New

York, Trading with the Enemy Act, 37 (1917),

https://perma.cc/ZA9E-S94X (act would limit “our enemies and their allies from receiving any benefits” from

the country’s business “until after the war closes”); 55

Cong. Rec. 4908 (1917) (statement of Rep. Andrew

Jackson Montague) (“[T]he bill is intended to meet the

emergencies growing out of the present world-wide

conflict …. Other wars may grow out of this war: and

therefore it is best to make one bite of a cherry.”); 55

Cong. Rec. 4869 (1917) (statement of Rep. William E.

Cox) (“[A]s soon as the war is over[, t]he war powers

given to the President by Congress will be repealed.”).

A decade and a half later, when newly inaugurated

President Roosevelt was seeking authority to blunt the

Great Depression, his administration reinterpreted

Section 5(b) of TWEA as a broad delegation of legislative power to the executive outside the context of war.

Benjamin A. Coates, The Secret Life of Statutes: A Century of the Trading with the Enemy Act, 1 Mod. Am.

Hist. 151, 160 (2018). Although early legal opinions

suggested that an executive invocation of Section 5(b)

to support domestic economic regulations hung on

manual published … as legal guidance to the TWEA merely reprinted 5(b) without comment except as a technical cross-reference to shipping.”).

“only a ‘shoe string,’” President Roosevelt relied on the

provision as authority for his 1933 “banking holiday,”

shutting down access to U.S. banks for a week to limit

runs on bank reserves. Id. at 160-61 (quoting Raymond Moley, The First New Deal 147 (1966)). Recognizing that he required Congress’s approval, Roosevelt

called a special session in Congress the day after his

inauguration, declaring the banking holiday and putting forward legislation that many in Congress did not

have a chance to read before hastily voting on it. Stephen Greene, Emergency Banking Act of 1933, Fed.

Rsrv. Hist. (Nov. 22, 2013), https://perma.cc/RSY6PGW4. Congress soon after enacted the Emergency

Banking Act of 1933, which provided for the reopening

of banks as soon as they were financially secure. Id.

That bill simultaneously altered the scope of Section

5(b) of TWEA from applying only during wartime to

applying also to periods of “national emergency declared by the President.” Emergency Banking Act of

1933, Pub. L. No. 73-1, § 2, 48 Stat. 1 (1933).

Roosevelt was also aware of the implications of

trade policy on economic recovery from the Great Depression, and in 1934, he formally requested trade negotiating authority from Congress, making clear that

the authority he sought was “within carefully guarded

limits, to modify existing duties and import restrictions in such a way as will benefit American agriculture and industry.” Douglas A. Irwin, Clashing

Over Commerce: A History of U.S. Trade Policy 424-25

(2017) (citation omitted). Congress delegated circumscribed economic power to the President through the

Reciprocal Trade Agreements Act (RTAA), Pub. L. No.

73-316, 48 Stat. 943 (1934). The Act aimed to address

the “present emergency” of the “economic depression,”

and it authorized the President to enter into foreign

trade agreements increasing or decreasing existing

duty rates by up to 50 percent. Id. § 350(a)(1)-(2), 48

Stat. at 943-44.

But in authorizing the President’s request through

the RTAA, Congress placed clear limits on the President, including by limiting the President’s authority to

increase rates by more than a certain percentage of established statutory rates. See, e.g., id. § 350(b), 48

Stat. at 944. In language added to appease critics, who

objected that the RTAA surrendered Congress’s taxing

power to the President, Irwin, Clashing Over Commerce 426-28, the law provided that “[t]he authority of

the President to enter into foreign trade agreements”

would “terminate on the expiration of three years from

the date of the enactment of this Act,” after which Congress would have to renew the President’s authority.

19 U.S.C. § 1352(c); Irwin, Clashing Over Commerce

426. This time limit “would keep the executive branch

accountable to the legislature.” Irwin, Clashing Over

Commerce 426. Supporters of the measure stressed

that the “President’s power is limited” and viewed the

RTAA as a necessary and temporary provision for addressing the country’s economic collapse. 78 Cong.

Rec. 5811 (1934) (statement of Rep. Henry Ellenbogen); see also id. at 5801 (statement of Rep. John W.

McCormack) (referring to “these emergency powers

which the circumstances existing compel us to delegate to [the President] temporarily”). Through the

RTAA, Congress thus conscientiously retained control

over the tariff authority. Harold Hongju Koh, Congressional Controls on Presidential Trade Policymaking

After I.N.S. v. Chadha, 18 N.Y.U. J. Int’l L. & Pol.

1191, 1195 (1986). Congress renewed presidential

trade-negotiating authority under the RTAA

“repeatedly but grudgingly.” Irwin, Clashing Over

Commerce 509.

In 1962, President Kennedy sought to replace the

RTAA with something new, wanting congressional authority to make across-the-board tariff reductions. Irwin, Clashing Over Commerce 522-24. The Trade Expansion Act of 1962 replaced the RTAA and gave the

President the authority he wanted, see id., but only up

to 50 percent of existing rates, Alan Wm. Wolff, Evolution of the Executive-Legislative Relationship in the

Trade Act of 1974, 19 SAIS Rev. of Int’l Affs. 16, 17

(1975), and only for an initial period of five years, see

Hornbeck & Cooper, Trade Promotion Authority 3-4.

Under Section 232 of the Act, the President also was

given the authority to adjust imports to protect national security. Trade Expansion Act of 1962, Pub. L.

No. 87-794, § 232, 76 Stat. 872, 877 (1962) (current

version at 19 U.S.C. § 1862). But before the President

could do so, he first had to make a finding of a threat

to national security and present it to Congress in a

written statement. 19 U.S.C. § 1862; Fed. Energy Admin. v. Algonquin, 426 U.S. 548, 559 (1976).

Thus, even in this period marked by expanded delegation, Congress never surrendered its authority

over tariffs.

III. WHEN NIXON TESTED THE LIMITS OF THE EXECUTIVE’S TARIFF-RELATED AUTHORITY, CONGRESS

RESPONDED WITH RESTRICTION

The next significant test of the limits of the President’s tariff authority came when President Nixon imposed tariffs in an attempt to compel other nations to

revalue their currencies. Nixon was seeking to ameliorate a depreciating dollar and a growing trade deficit.

By the late 1960s, the nation faced growing trade

difficulties as several countries emerged as global

trade competitors of the United States. Joseph J.

Thorndike, Nixon and Trump: United by Tough Talk

and Even Tougher Tariffs, TaxNotes (Mar. 10, 2025),

https://www.taxnotes.com/lr/resolve/tax-history-project/nixon-and-trump-united-by-tough-talk-and-eventougher-tariffs/7rkyf. Slower productivity growth in

the United States relative to its trade partners also affected the dollar, which had become overvalued and

meant that imports were cheap, but exports were expensive. Id. This, in turn, made the nation’s exports

less competitive on the global stage, and the United

States’ trade deficit began to grow. Douglas Irwin, The

Nixon Shock and the Trading System, The Int’l Econ.,

Summer 2021, at 33, https://perma.cc/7A8N-SZ7G.

With the dollar serving as an anchor of an international monetary system per the Bretton Woods agreement, the United States could not just devalue its currency to make its products cheaper, and, in any event,

other countries did not want to revalue their currency

when they had a competitive edge in export industries.6 Irwin, Clashing Over Commerce 542. This overvaluation of the dollar, combined with data that indicated that the United States was on track to have its

first annual trade deficit since World War II and that

a “foreign exchange crisis was inevitable,” prompted

6 The Bretton Woods system formalized the dollar as the key

global reserve currency in 1944; foreign currencies were fixed to

the dollar, and the dollar fixed to gold. Sandra Kollen Ghizoni,

Nixon Ends Convertibility of U.S. Dollars to Gold and Announces

Wage/Price Controls, Fed. Rsrv. Hist. (Nov. 22, 2013),

https://perma.cc/4XHE-PA7M.

Nixon to “prepar[e] for changes in the international

monetary system.” Id. at 543-44.

To address these issues, Nixon was bent on using

tariffs to pressure other countries, particularly Japan

and Germany, to revalue their currencies via tariffs.

Id. at 545. In August 1971, Nixon unveiled a “New

Economic Policy,” which implemented wage and price

controls and suspended the ability of other countries

to exchange their dollars for gold at any time. Executive Order No. 11,615, 36 Fed. Reg. 15722 (Aug. 17,

1971); Richard Nixon, Address to the Nation Outlining

a New Economic Policy: “The Challenge of Peace,” reprinted by The Am. Presidency Project (Aug. 15, 1971),

https://perma.cc/U9NP-LK82. A third component of

the policy also required the imposition of a “temporary” global ten-percent tax on all goods imported into

the country. Proclamation No. 4074, 36 Fed. Reg.

15724 (Aug. 15, 1971). According to Nixon, these steps

would rectify the erosion of the country’s trade balance. Nixon, Address to the Nation.

In order to suspend tariff agreements and impose

these additional ten-percent tariffs, Nixon declared a

national emergency. The tariff authorities he invoked,

however, were the explicit congressional authorizations in the Tariff Act of 1930 (Smoot-Hawley), and the

Trade Expansion Act of 1962, both of which gave the

President authority to adjust tariff rates under specified conditions; Nixon did not invoke the TWEA. Proclamation No. 4074, 36 Fed. Reg. 15724 (Aug. 15, 1971).

Department of Justice attorneys argued that the tariffs were also authorized under TWEA only after an

importer sued the government to challenge the tariffs.

Yoshida Int’l, Inc. v. United States, 378 F. Supp. 1155,

1157 (Cust. Ct. 1974), rev’d, United States v. Yoshida

Int’l, Inc. (“Yoshida II”), 526 F.2d 560 (C.C.P.A. 1975).

Even as later-rationalized emergency tariffs,

Nixon’s tariffs respected congressional bounds—the

tariffs did not exceed amounts set in congressionally

approved existing tariff schedules. Proclamation No.

4074, 36 Fed. Reg. 15724 (Aug. 15, 1971); see also

Douglas A. Irwin, The Nixon Shock After Forty Years:

The Import Surcharge Revisited, 25-26 (Nat’l Bureau

of Econ. Rsch., Working Paper No. 17749, 2012),

https://perma.cc/5QZW-R3SG. And, Nixon’s ten-percent surcharge was indeed temporary; it lasted less

than five months, culminating in an agreement among

the affected nations in December 1971 which established new exchange rates. Proclamation No. 4098, 36

Fed. Reg. 24,201 (Dec. 20, 1971).

Nixon also knew that he could not negotiate agreements with foreign governments without first obtaining renewed trade-negotiating authority, which had

lapsed in 1967. In 1973, Nixon asked Congress for the

power to reduce tariffs gradually, as a way to bargain

against non-tariff barriers that affected the United

States’ ability to export to Europe and elsewhere. Irwin, Clashing Over Commerce 549; Richard Nixon,

Special Message to the Congress Proposing Trade Reform Legislation, reprinted by The Am. Presidency

Project

(Apr.

10,

1973),

https://www.presidency.ucsb.edu/documents/special-message-the-congress-proposing-trade-reform-legislation. Congress’s

first major trade legislation after Nixon’s tariffs thus

was made in response to his request for renewal of his

authority to negotiate trade agreements. See S. Rep.

No. 93-1298, at 7196 (1974); Irwin, Clashing Over

Commerce 549-51.

In enacting the Trade Act of 1974, Congress

sought to provide the President with negotiating credibility, while simultaneously “rein[ing] in a runaway

President by crafting statutory procedures that would

impose greater congressional control on executive discretion and ensure unprecedented congressional participation in the upcoming multilateral negotiations.”

Koh, 18 N.Y.U. J. Int’l L. & Pol. at 1201. Under the

Act, for example, Congress authorized the President to

impose quotas and/or a temporary import surcharge,

but only for up to 150 days, only up to 15 percent, and

only “to deal with large and serious United States balance-of-payments deficits,” “to prevent an imminent

and significant depreciation of the dollar in foreign exchange markets,” or “to cooperate with other countries

in correcting an international balance-of-payments

disequilibrium.” 19 U.S.C. § 2132(a).7 Section 201 gave

the President authority to impose tariffs to protect a

domestic industry, but only after the United States International Trade Commission makes a finding of “serious injury” by increased imports. Id. § 2251. A separate section, Section 301, id. § 2411(a), (c)(1)(B), authorized the President to direct the U.S. Trade Representative to respond to unfair practices, including by

imposing tariffs and quotas against the foreign country’s imports, but only upon a finding that the other

country has denied the United States its rights under

Only after Congress passed the Trade Act of 1974 did the

appellate court in Yoshida II reverse the trial court’s holding that

TWEA did not authorize presidential tariff increases. By that

time, Congress had granted Nixon the tariff authority he sought,

albeit via a specifically tailored statute. Indeed, the court in Yoshida II questioned the continuing relevance of its holding in the

wake of Section 122 of the Trade Act of 1974. 526 F.2d at 582

n.33.

a trade agreement or has engaged in unfair trade practices.

With regard to the President’s authority to negotiate trade agreements, including non-tariff barriers

such as customs and safety standards, the Trade Act

required congressional sign-off, albeit via a “fast

track” procedure. Wolff, Evolution of the ExecutiveLegislative Relationship in the Trade Act of 1974, 19

SAIS Rev. of Int’l Affs. at 20-21. Under this scheme,

still in effect, the President can reach trade agreements with other countries, but Congress has to vote

either up or down on the agreements; “the executive

branch does not have independent power to enter into

a trade-related agreement without that authorization.” Kathleen Claussen & Timothy Meyer, The Foreign Commerce Power, Duke L. Sch. Pub. L. & Legal

Theory Series No. 2025-44, at 49 (rev. Sept. 8, 2025),

https://perma.cc/RGN8-893L; Irwin, Clashing Over

Commerce 551.

It was this statute, the Trade Act of 1974, that

Congress believed was the “largest delegation of trade

negotiating authority to the Executive in history,” S.

Rep. No. 93-1298, at 7196 (1974), and yet it still contained the aforementioned specific limitations, including limited durations, ceilings as to tariff amounts,

and congressional approval. As the Executive Branch’s

then-principal trade attorney Alan Wolff—who

worked on the proposed legislation for the Trade Act

of 1974—acknowledged, in the Act “Congress retained

the power to override the President’s decisions in

providing import relief … [and] the manner in which

he retaliated against unfair foreign trade practices.”

Wolff, Evolution of the Executive-Legislative Relationship in the Trade Act of 1974, 19 SAIS Rev. of Int’l Affs.

at 22. This history of the Trade Act of 1974 crystalizes

two recurring themes: (1) the President does not have

unfettered unilateral authority to set tariffs; and (2)

when Congress has granted the Executive tariff authority, it has carefully limited that authority.

One year later, Congress enacted an additional

safeguard against executive overreach, the National

Emergencies Act (NEA), which terminated all existing

declarations of national emergency. NEA ended within

two years “[a]ll powers and authorities possessed by

the President … as a result of the existence of any declaration of national emergency in effect on September

14, 1976,” 50 U.S.C. § 1601(a). It also placed new restrictions on the declaration and termination of future

national emergencies. Id. §§ 1621-22. The Senate committee report recommending passage of the Act emphasized that wartime and emergency delegations had

granted the President “extraordinary powers” and

that Congress needed to “fulfill[] its own constitutional

responsibilities.” S. Rep. No. 94-922, at 1 (1976). The

congressional debates on NEA similarly affirmed the

need to curtail such “broad, open-ended grants of

power [to the President], with no provision for congressional review.” 95 Cong. Rec. 425 (1977) (statement of

Rep. Jonathan B. Bingham).

The NEA, as originally enacted, also allowed Congress to terminate emergency declarations using a

“legislative veto,” which would have allowed two

Houses of Congress to override presidential emergency declarations. 50 U.S.C. § 1622. Although the Supreme Court later held that legislative vetoes were unconstitutional in INS v. Chadha, 462 U.S. 919 (1983),

Congress’s intent for NEA nevertheless was to reassert a tight grip over the matter of tariffs. Congress

also specifically identified in NEA the need to reexamine TWEA and propose such revisions as might be

necessary to limit the President’s exercise of authority

under it. S. Rep. No. 95-466, at 2 (1977); see S. Res.

242, 93d Cong. (1974). As one Senator stated, NEA restored Congress to “its status as an independent, coequal arm of the government.” 95 Cong. Rec. 7218

(1977) (statement of Sen. Frank Church, quoting his

earlier published remarks).

Congress’s solution to the issue of TWEA, which it

concluded had been too permissive, was IEEPA, a

1977 law that ensured that the Executive could not

use emergency authorities to remake domestic economic policy. E.g., S. Rep. No. 95-466, at 2 (1977) (emphasizing that “the purpose of” IEEPA was “to revise

and delimit the President’s authority” in response to

earlier executive uses of TWEA). Under IEEPA, the

President’s non-wartime emergency powers are limited to “an unusual and extraordinary threat with respect to which a national emergency has been declared.” 50 U.S.C § 1701(b). IEEPA’s text thus reflects

a conscious congressional decision to restrict—not expand—executive discretion. Id.; see also H.R. Rep. No.

95-459, at 2 (1977) (IEEPA’s authorities were “both

more limited in scope than those of [TWEA] and subject to various procedural limitations” (emphasis

added)).8 Moreover, Congress’s limiting language of

The House Committee emphasized that IEEPA was designed to impose “substantive restrictions” on presidential power,

explaining that “emergencies are by their nature rare and brief,

and are not to be equated with normal, ongoing problems.” H.R.

Rep. No. 95-459, at 10 (1977). The Committee further stated that

a national emergency should be declared “only with respect to a

specific set of circumstances which constitute a real emergency,

and for no other purpose.” Id.

“unusual and extraordinary” was not just a procedural

formality, but a substantive standard embedded in the

statute’s text. If there was once debate about how far

the President’s authority extended under TWEA,

IEEPA in both its text and in the accompanying legislative history makes clear that Congress sought to rein

those powers in.

Instead of expanding the President’s trade-related

powers, IEEPA was designed to “differentiate between

those economic powers available to the President in

time of war and those available in time of declared national emergency.” Jimmy Carter, Presidential War

Powers Bill Statement on Signing H.R. 7738 Into Law

reprinted by The Am. Presidency Project (Dec. 28,

1977), https://perma.cc/Q6CY-HU9Z. When IEEPA

was enacted, not even President Carter, who signed

IEEPA into law, thought that it would significantly affect trade policy. See id. (“The bill is largely procedural.”).

IV. THE HISTORY OF CONGRESS’S TARIFF AUTHORITY

AND ITS RESTRICTIONS ON THE EXECUTIVE’S TARIFF-RELATED AUTHORIZATIONS DEMONSTRATE

THAT THE TARIFFS AT ISSUE HERE PRESENT A

MAJOR QUESTION

President Trump unilaterally has issued sweeping

and boundless tariffs citing IEEPA as authority.

Whether Congress in fact has delegated such unbridled authority to the President, in contravention of

Congress’s and the Executive’s long and intricate history, is a major question. Such a delegation would be

a sharp deviation from the Executive’s historical tariff-related authority.

It would be both ahistorical and contrary to the

Framers’ conception of Congress’s tariff authority to

read IEEPA as granting an unbounded tariff (i.e., taxing) power to the Executive. The history of the statutes

culminating in IEEPA, and the text of IEEPA itself,

elucidate Congress’s deliberate decisions to reclaim its

authority over tariffs. The Trade Act of 1974 was designed to reintroduce congressional restraint on a

President’s use of tariff authority after Nixon unilaterally imposed tariffs to address an overvalued dollar

and an increasing trade deficit, and his attorneys later

invoked TWEA to justify the tariffs. Supra at 17-18.

And, in response to Nixon’s declaration of a national

emergency before imposing the tariffs, Congress later

redefined the scope of the President’s power to declare

national emergencies in the NEA. Supra at 21-22.

Congress followed suit in IEEPA, constraining the

President’s powers to “unusual and extraordinary

threat[s]” arising “in whole or substantial part outside

the United States.”9 50 U.S.C § 1701(a)-(b).

IEEPA did not authorize limitless tariff rates via

a statute that sought to constrain presidential authority. Reading the statute in the way that the President

has advanced would render it “unrecognizable to the

Congress that designed it.” Util. Air Reg. Grp. v. EPA,

573 U.S. 302, 324 (2014) (internal quotation marks

9 As one House Report noted, “[S]ection 5(b) [of TWEA] has

become essentially an unlimited grant of authority for the President to exercise, at his discretion, broad powers in both the domestic and international economic arena … [powers] exercised so

long as there is an unterminated declaration of national emergency on the books, whether or not the situation with respect to

which the emergency was declared bears any relationship to the

situation with respect to which the President is using his authorities.” H.R. Rep. No. 95-459, at 7 (1977).

omitted). If Congress had wanted to grant the President such unprecedented leeway over the tariff authority that Congress has possessed since our nation’s

inception, it would have had to say so in clear and unmistakable terms. See West Virginia v. EPA, 597 U.S.

697, 723 (2022) (“Extraordinary grants” of power “are

rarely accomplished through modest words, vague

terms, or subtle device[s].” (internal quotation marks

omitted)); Util. Air, 573 U.S. at 324 (“We expect Congress to speak clearly if it wishes to assign to an

agency decisions of vast economic and political significance.” (internal quotation marks omitted)).

Nor would any such delegation make sense given

the realities of the legislative process. It is much

harder for Congress to correct a decision from this

Court that erroneously gives the President unbridled

tariff authority—requiring two-thirds vote of each

house to surmount a presidential veto of such a bill—

than it is for Congress to correct a decision that comes

out the other way—where a simple majority would authorize the tariff delegation. U.S. Const. art. I, §§ 5, 7.

Aware of these procedural differences, Congress has

maintained a tight grip over its delegations to the

President.

That the major questions doctrine applies here is

evident in multiple ways.10 First, the divisive history

10 The major questions doctrine constrains presidential as

well as agency action. See, e.g., Louisiana v. Biden, 55 F.4th 1017,

1031 n.40 (5th Cir. 2022). That point has become even clearer in

recent cases emphasizing the President’s direct control over executive agencies. See, e.g., Trump v. Wilcox, 145 S. Ct. 1415 (2025)

(permitting the President to remove agency members in violation

of for cause protections, during pendency of litigation, because

“the Constitution vests the executive power in the President”). If

agency decisions are understood as expressions of presidential

of tariffs makes clear that Congress would not have

intended to delegate tariff authority to the President

without any limits. As detailed, supra at 6-9, American history is replete with moments featuring intense

debates and congressional action over what the appropriate tariff policies were. During the Nullification

Crisis, the issue of tariffs threatened to sever the country in two. See supra at 8-9. For that reason, when

Congress has delegated tariff authority to the Executive, it has usually done so within numerical limits

and other boundaries. See, e.g., J.W. Hampton, Jr., &

Co. v. United States, 276 U.S. 394, 401 (1928) (statute

limiting President to a “total increase or decrease of

such rates of duty” of up to 50 percent of Congress’s

specified rates (internal quotation marks omitted));

Yoshida II, 526 F.2d at 577 (Presidential Proclamation

did not disregard congressional will because it specifically provided that its additional duty imposition could

not exceed the prescribed rates of the Tariff Schedules

of the United States). It is one thing for Congress to

permit discretion in tariff rates within prescribed limits; it is another entirely—and a matter of vast political significance—for Congress to delegate unbounded

rate-setting, without any legislative checks. The President’s claim to such limitless authority makes this

precisely the type of unprecedented policy change to

which the major questions doctrine applies. See Biden

v. Nebraska, 600 U.S. 477, 496 (2023) (statutory authority given to the Executive Branch that was meant

for “a few narrowly delineated situations specified by

authority, then limits that apply to agencies necessarily apply to

the President himself. The unitary executive framework,

properly understood, reinforces Congress’s power to define and

confine executive discretion.

Congress” cannot be “convert[ed] … into its opposite”

(internal quotation marks omitted)).

Second, the issue of tariffs is rooted in separation

of powers principles—specifically, the fact that the

power to raise revenue belongs with Congress. See supra at 3-7 (discussing Congress’s power to raise revenue and issue tariffs); see also West Virginia, 597 U.S.

at 723 (considering separation of powers principles in

reading ambiguous statutory text). It is clear from the

administration’s statements that it believes the tariffs

under IEEPA will raise significant revenue for our nation and are desirable for that reason. See, e.g., Grace

Yarrow & Meredith Lee Hill, Trump Says He’ll Use

Tariff Revenue to Bail Out Farmers, Politico (Sept. 25,

2025), https://perma.cc/W3V7-ABB4 (“[W]e’re going to

take some of that tariff money that we made … and

make sure that our farmers are in great shape, because we’re taking in a lot of money.”); The White

House (@WhiteHouse), X (Aug. 31, 2025, 11:06 AM),

https://perma.cc/36FJ-5P27 (post touting “$8 trillion

in tariff revenue”). According to Congressional Budget

Office estimates,11 the tariffs have an economic impact

valued between $2.5 and 3.3 trillion over ten years, or

approximately five times more than what this Court

deemed the “staggering” impact of student loan forgiveness in Nebraska warranting invocation of the major questions doctrine. 600 U.S. at 502 (estimating that

the loan forgiveness program cost taxpayers between

$469 billion and $519 billion over ten years, which itself was ten times the economic impact the Court

found significant in concluding that the CDC’s eviction

11 Phill Swagel, An Update About CBO’s Projections of the

Budgetary Effects of Tariffs, Cong. Budget Off. (Aug. 22, 2025),

https://perma.cc/7QLY-8HC9.

moratorium triggered application of the major questions doctrine).

Indeed, the tariff rates that the President unilaterally imposed have been unknown to the American

public since Congress passed the Smoot-Hawley Tariff

Act in the 1930s. See State of U.S. Tariffs, The Budget

Lab at Yale (Sept. 26, 2025), https://perma.cc/7QLZGSBC. Theoretically, they could be even (much)

higher, for it appears the President sees no upper

bound on his authority to raise tariffs. “[C]ommon

sense” would suggest that if Congress, after its history

of deliberate action regarding tariffs, wanted to return

to that specific regime, given “[t]he basic and consequential tradeoffs involved in such a choice,” it would

have made that decision itself. West Virginia, 597 U.S.

at 722, 730 (internal quotation marks omitted).

The major questions doctrine is apt here for an additional reason: no prior administration, not even the

prior Trump administration, has invoked IEEPA to issue tariffs to address a long-running trade deficit. The

first Trump administration experienced trade deficits

approximating half a trillion dollars but did not once,

in four years, invoke IEEPA in response. See Macrotrends, U.S. Trade Balance (last visited Oct. 21, 2025),

https://perma.cc/X5M5-ZUAD. It was surely familiar

with its authorities under other tariff-granting legislation, such as Sections 201 and 301 of the Trade Act

of 1974 as well as Section 232 of the Trade Expansion

Act of 1962.12 And it was intimately familiar with the

12 See, e.g., Proclamation No. 9705, 83 Fed. Reg. 11625 (Mar.

8, 2018); Proclamation No. 9704, 83 Fed. Reg. 11619 (Mar. 8,

2018); Notice of Action and Request for Public Comment Concerning Proposed Determination of Action Pursuant to Section 301:

China’s Acts, Policies, and Practices Related to Technology

fact that the United States has long had trade deficits.

See, e.g., Exec. Order No. 13,786, 82 Fed. Reg. 16721

(Mar. 31, 2017); see Martin Crutsinger, US Trade Deficit Surges in July to Highest in 12 Years, Assoc. Press

(Sept. 3, 2020), https://perma.cc/D66S-VSA3.

The Court should meet this administration’s application of “a long-extant statute … to regulate a significant portion of the American economy” with a good

measure of “skepticism.” Util. Air, 573 U.S. at 324 (internal quotation marks omitted); see also Nebraska,

600 U.S. at 501-02 (where a President seeks a “fundamental revision of [a] statute,” this Court should “hesitate before concluding that Congress meant to confer

such authority” (internal quotation marks omitted)).

This Court has required “something more than a

merely plausible textual basis” when confronted with

expansive assertions of Executive authority. West Virginia, 597 U.S. at 723. Reading IEEPA’s grant of authority to “regulate … [the] importation” to authorize

trillions of dollars in revenue generation through a

double-digit tax hike—without any limitation—“is a

wafer-thin reed on which to rest such sweeping

power.” See generally Ala. Ass’n of Realtors v. HHS,

594 U.S. 758, 765 (2021) (per curiam) (rejecting argument that statutory provision historically used for

measures like quarantining permitted the Centers for

Disease Control and Prevention to impose a moratorium on evictions in response to the COVID-19 pandemic). Instead, both the text and history of IEEPA

foreclose the possibility of clear congressional

Transfer, Intellectual Property, and Innovation, 83 Fed. Reg.

28710 (June 20, 2018); President Trump Approves Relief for U.S.

Washing Machine and Solar Cell Manufacturers, Off. of the U.S.

Trade Rep. (Jan. 22, 2018), https://perma.cc/Q57T-9CLG.

authorization; the point of IEEPA was to constrain

and limit the President. Given “the full picture in

view,” Nebraska, 600 U.S. at 517 (Barrett, J., concurring), it is clear that Congress did not authorize the

President’s actions here.

CONCLUSION

The Court should hold that Congress did not grant

the President the authority to impose the tariffs at issue in these cases.

Respectfully submitted.

PAUL R.Q. WOLFSON

Counsel of Record

POOJA A. BOISTURE

SOMIL B. TRIVEDI

AMY C. VICKERY

GILBERT G. ORBEA

DEMOCRACY FORWARD

FOUNDATION

P.O. Box 34553

Washington, DC 20043

(202) 448-9090

pwolfson@democracy

forward.org

OCTOBER 2025

APPENDIX

INDEX

LIST OF AMICI

LIST OF AMICI CURIAE

Sotirios Barber is Emeritus Faculty at Notre Dame

University.

Corey Brettschneider is Professor of Political Science at Brown University.

Holly Brewer is the Burke Chair of American Cultural and Intellectual History and Associate Professor

at the University of Maryland.

Martin Flaherty is Charles and Marie Robertson

Visiting Professor, School of Public and International

Affairs at Princeton University, and Leitner Family

Professor of International Human Rights Law at Fordham Law School.

Lawrence Lessig is the Roy L. Furman Professor of

Law and Leadership at Harvard Law School.

Carol Nackenoff is the Richter Professor Emerita of

Political Science at Swarthmore College.

Gautham Rao is Associate Professor at American

University.

Lawrence Sager is the Alice Jane Drysdale Sheffield

Regents Chair at the University of Texas at Austin

School of Law.

Jeffrey K. Tulis is Professor Emeritus at the University of Texas at Austin.

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.