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

No. 25-250

In the

Supreme Court of the United States

DONALD J. TRUMP,

PRESIDENT OF THE UNITED STATES, et al.,

Petitioners,

v.

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

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Federal Circuit

BRIEF OF TRADE SCHOLARS IN ECONOMICS,

POLITICS, AND LAW AS AMICI CURIAE IN

SUPPORT OF RESPONDENT V.O.S. SELECTIONS

Erica Hashimoto, Director

Counsel of Record

John Peng

Max A lderman

A ppellate Litigation Clinic

Georgetown University Law Center

111 F Street, N.W., Suite 306

Washington, DC 20001

(202) 662-9000

eh502@georgetown.edu

Counsel for Amici Curiae

120691

i

TABLE OF CONTENTS

Page

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

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

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

I N T RODUC T ION A N D SU M M A RY OF

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

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

I.

The Economics Behind Section 12 2

Demonstrate that Congress Enacted It to

Target Trade Deficits . . . . . . . . . . . . . . . . . . . . . . 5

A. The Term “Balance-of-Payments

Deficits” in Section 122 Means Trade

Deficits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. A White House Committed to Restoring

the Trade Balance . . . . . . . . . . . . . . . . . . . . 10

C. Congress Heeds the President’s Call . . . . 11

II. IEEPA Cabined the President’s Power. . . . . . . 13

A. TWEA and the Expansive Use of

Emergency Powers . . . . . . . . . . . . . . . . . . . 14

B. Congress Responds to the Expansive

Use of Emergency Power. . . . . . . . . . . . . . . 15

ii

Table of Contents

Page

C. IEEPA Has Never Been Used to

Authorize Tariffs Before Now . . . . . . . . . . 18

III. President Trump Must Comply with Section

122’s Requirements When Imposing Any

Tariffs to Address Trade Imbalances . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii

TABLE OF CITED AUTHORITIES

Page

CASES:

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Morton v. Mancari,

417 U.S. 535 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

RadLAX Gateway Hotel, LLC v.

Amalgamated Bank,

566 U.S. 639 (2012) . . . . . . . . . . . . . . . . . . . . . . . . 21-22

United States v. Yoshida Int’l, Inc.,

526 F.2d 560 (CCPA 1975) . . . . . . . . . . . . . . . . . . . . . 15

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

149 F.4th 1312 (Fed. Cir. 2025) . . . . . . . . . . . . . . . . . 20

Varity Corp. v. Howe,

516 U.S. 489 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Yoshida Int’l, Inc. v. United States,

378 F. Supp. 1155 (Cust. Ct. 1974) . . . . . . . . . 11, 13, 15

STATUTES AND OTHER AUTHORITIES:

19 U.S.C. § 2132(a) . . . . . . . . . . . . . . . . . . . . . . . . 13, 20, 23

19 U.S.C. § 2132(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

iv

Cited Authorities

Page

50 U.S.C. § 1701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

50 U.S.C. § 1702(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 18

50 U.S.C. § 1703 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

50 U.S.C. § 1622 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

50 U.S.C. § 1631 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

91 Stat. 1625 § 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Vipin Arora, Beer and the Balance of Payments, U.S.

Bureau of Economic Analysis (Mar. 11, 2024),

https://perma.cc/GJ3G-RGBR . . . . . . . . . . . . . . . . . . . 7

Christopher A. Casey et al., Cong. Rsch. Serv., R45618,

The International Emergency Economic Powers

Act: Origins, Evolution, and Use 60 (2025) . . . . 18-19

H.R. Rep. No. 95-459 . . . . . . . . . . . . . . . . . . . . . . 15, 18, 21

Hearings on H.R. 10710 Before the Sen. Fin. Comm. . . . 23

IMF, Balance of Payments and International

Investment Position Manual (6th ed. 2009) . . . . . . . 8

I M F, B a l a n c e o f P a y m e n t s M a n u a l

(4th ed. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8

v

Cited Authorities

Page

IMF, Comm. on Balance of Payments Stat., The

Use of Balance of Payments Statistics in the

Determination of Monetary and Fiscal Policy

(Sep. 16, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

International Emergency Economic Powers Act,

Pub. L. 95-223, 91 Stat. 1626 (1977) . . . . . . . . . . . . . 18

J. Res. of May 7, 1940, 54 Stat. 179 . . . . . . . . . . . . . . . . . 14

Nat’l Emergencies Act § 401 . . . . . . . . . . . . . . . . . . . . . . 17

President Richard Nixon, Special Message to the

Congress Proposing Trade Reform Legislation

(Apr. 10, 1973), in The American Presidency

Project, https://perma.cc/F9MQ-487F . . . . . . . . . . . 12

Pa p e r P r e p a r e d i n t h e D e p a r t m e n t of

Treasury, Foreign Relations of the United

States 1969 -1976, 3: 76 (Sept. 10, 1971),

https://perma.cc/JTZ8-2KTU . . . . . . . . . . . . . . . . . . 11

In f o r m a t i o n Me m o r a n d u m f r o m t h e

President’s Assistant for International

Economic Affairs (Peterson) to President

Nixon, Foreign Relations of the United

States 1969-1976, 4: 260 (Dec. 10, 1971),

https://perma.cc/3NG7-MAUY . . . . . . . . . . . . . . . . . 10

Proclamation No. 4074, 85 Stat. 926

(Aug. 15, 1971) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 15

vi

Cited Authorities

Page

Pub. L. No. 95-223, § 101 . . . . . . . . . . . . . . . . . . . . . . . . . 18

S. Rep. No. 93-549 . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

S. Rep. No. 93-1208 . . . . . . . . . . . . . . . . . . . . . . . . 5, 12, 13

S. Rep. No. 93-1280 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

S. Rep. No. 94-922 . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

S. Rep. No. 95-459 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20

The Trade Reform Act of 1973: Hearings on

H.R. 10710 Before the Sen. Fin. Comm.,

9 3rd Cong. 2 4 0 0 (19 74) (st at ement of

Charles W. Stewart, Machinery and Allied

Products Institute President) . . . . . . . . . . . . . . . . . . 12

Trade Act of 1974 § 122 . . . . . . . . . . . . . 3-5, 13, 15, 20-24

T r a de A c t of 19 74 , P ub. L . No. 9 3 -16 8 ,

88 Stat. 1978 (1974) . . . . . . . . . . . . . . . . . . . . . . . . 12-13

Trade Reform Act of 1973 . . . . . . . . . . . . . . . . . . . . . . . . 12

Trading with the Enemies Act § 5(b) . . 4, 11, 14, 15, 18, 21

Trading with the Enemy Act, Pub. L. No. 65-91,

40 Stat. 411 (1917) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

vii

Cited Authorities

Page

U.S. Bureau of Econ. Analysis, “Table 1.1, U.S.

International Transactions,” https://perma.cc/

SWP2-84ZG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

U.S. Dep’t of Com., Bureau of Econ. Analysis,

The Balance of Payments of the United States:

Concepts, Data Sources, and Estimating

Procedures xii (May 1990) . . . . . . . . . . . . . . . . . . . . . 7

U.S. Position Paper, Foreign Relations of the

United States 1969-1976, 3: 95 (undated),

https://perma.cc/9UGJ-KA3A . . . . . . . . . . . . . . . . . . 11

1

INTEREST OF THE AMICI CURIAE1

Amici curiae are academic scholars 2 with leading

expertise in the economics, politics, and law of international

trade. One is a Nobel Laureate in Economic Sciences, and

collectively, amici have authored influential theoretical

and empirical work on international trade, from the

perspective of economics, political science, and law.

Marc L. Busch is the Karl F. Landegger Professor of

International Business Diplomacy at the School of Foreign

Service at Georgetown University.

Christina L. Davis is the Edwin O. Reischauer

Professor of Japanese Politics at the Department of

Government at Harvard University.

Raj M. Desai is the Professor of International

Development at the School of Foreign Ser vice at

Georgetown University.

Robert C. Feenstra is a Distinguished Professor

Emeritus at the Department of Economics at University

of California, Davis.

Jeffry A. Frieden is a Professor of International

and Public Affairs and Political Science at Columbia

University.

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

in part. No person or entity other than amici and their counsel

funded its preparation or submission.

2. Amici curiae are signing this brief in their individual

capacities and not on behalf of their institutions; institutional

affiliations are provided solely for identification purposes.

2

William R. Hauk, Jr. is an associate professor of

Economics at the Darla Moore School of Business at the

University of South Carolina.

Krzysztof Pelc is the Lester B. Pearson Professor of

International Relations in the Department of Politics and

International Relations at Oxford University.

Nuno Limao is the Wallenberg Professor in

International Business and Finance at the School of

Foreign Service at Georgetown University.

Rodney D. Ludema is a Professor in the Department

of Economics at the School of Foreign Ser vice at

Georgetown University.

Giovanni Maggi is the Howard H. Leach Professor of

Economics and International Affairs at Yale University.

Petros Mavroidis is the Edwin B. Parker Professor

of Foreign and Comparative Law at Columbia Law School

Anna Maria Mayda is a Professor in the Department

of Economics at the School of Foreign Ser vice at

Georgetown University.

Abraham Newman is the John Powers Professor in

International Business Diplomacy at the School of Foreign

Service at Georgetown University.

Irfan Nooruddin is the Hamad bin Khalifa Al Thani

Professor of Indian Politics at the School of Foreign

Service at Georgetown University.

Dennis P. Quinn is the John J. Powers, Jr. Professor

of International Business at the McDonough School of

Business at Georgetown University.

3

Natalia Ramondo is a Professor in the Department

of Economics at Boston University.

Nita Rudra is a Professor in the Department of

Government at McDonough School of Business and School

of Foreign Service at Georgetown University

George E. Shambaugh is a Professor at the School

of Foreign Service at Georgetown University.

Joseph Stiglitz is a Nobel Laureate and University

Professor at the Columbia Business School in the

Department of Economics and School of International

and Public Affairs at Columbia University

Erik Voeten is the Peter F. Krogh Professor of

Geopolitics and Justice in World Affairs at the School of

Foreign Service at Georgetown University.

James Raymond Vreeland is a Professor of Politics

and International Affairs at Princeton University.

INTRODUCTION AND SUMMARY

OF ARGUMENT

Section 122 of the Trade Act of 1974 (“Section 122”)

governs President Donald Trump’s trade deficit tariffs.

This is for two reasons.

First, Section 122 gives presidents tariff authority to

address balance of payments (“BoP”) disequilibria, and

decades of U.S. economic data show that BoP deficits and

trade deficits are empirically synonymous. The BoP is

an accounting methodology that tracks all assets flowing

between the United States and the rest of the world.

4

Because the trade of goods and services accounts for the

vast majority of such assets, the trade balance and the

BoP in the United States rise and fall as one. This was

true when Section 122 was passed and remains true today.

Second, Congress enacted Section 122 to address the

same economic challenge that President Trump seeks to

address today: a trade deficit. In 1971, the United States

recorded its first trade deficit in nearly a century. In

response, President Richard Nixon declared a national

emergency and imposed a ten-percent tariff on dutiable

imports. He later justified the tariff under Section 5(b) of

the Trading with the Enemies Act (“TWEA”). When the

U.S. Customs Court held that Section 5(b) granted President

Nixon no such authority, Congress enacted Section 122 to

fill this void. That provision arms presidents with tariff

authority to respond to trade deficits like the one President

Nixon faced in 1971 and President Trump faces today.

Because the economic data and history demonstrate that

Congress deliberately and narrowly designed Section 122

to target trade deficits, Section 122 governs the tariffs here.

The Government insists that the International

Emergency Economic Powers Act (“IEEPA”) also

provides tariff authority to address trade deficits. But

IEEPA does not. In fact, its history reveals that Congress

enacted IEEPA to constrain the president’s expansive

use of emergency declarations and emergency powers.

Further, IEEPA neither mentions duties or tariffs nor

has it ever been used to levy tariffs until now. In passing

IEEPA shortly after Section 122, Congress created a

statutory framework restricting the president’s trade

deficit tariff authority to Section 122 while providing

other non-tax emergency powers under IEEPA. Because

Section 122 is the sole authority Congress made available

5

for presidents to impose trade deficit tariffs, President

Trump must comply with its limitations.

ARGUMENT

I.

The Economics Behind Section 122 Demonstrate

that Congress Enacted It to Target Trade Deficits.

Section 122 is the proper vehicle to address President

Trump’s trade deficit concerns. Congress designed

Section 122 to give presidents a tool to address trade

deficits, like the one President Nixon declared to be a

national emergency in 1971 and the one President Trump

declared an emergency in 2025. That Congress identified

“balance-of-payments deficits” within the statute, 19

U.S.C. § 2132(a)(1), reflects nothing more than the basic

economic understanding that BoP deficits and trade

deficits are empirically the same in the United States.

They move hand in hand.

A.

The Term “Balance-of-Payments Deficits” in

Section 122 Means Trade Deficits.

To understand the economic issue Section 122 targets,

it is important to understand the turbulent state of the

U.S. economy relative to other global economies at the

time of its enactment. Europe had rebuilt its productive

capacity after years of war-driven stagnation, becoming

the world’s largest trading bloc. S. Rep. No. 93-1208, at

13 (1974). Japan’s economy was growing at an astonishing

speed. Id. Trading partners that had agreed to

nondiscrimination practices under the General Agreement

on Tariffs and Trade of 1947 were increasingly reverting

back to discriminatory trading arrangements. Id. at 5.

And record peacetime inflation had weakened the dollar

abroad. See id. at 12–13.

6

As a result, for the first time since 1888, the United

States recorded a trade deficit in 1971.

7

That the United States was running a trade deficit

necessarily meant it was running a BoP deficit. The BoP

is an established accounting methodology3 showing all

assets flowing between the United States and the rest

of the world through trade, investments, and financial

transfers. See U.S. Dep’t of Com., Bureau of Econ.

Analysis, The Balance of Payments of the United States:

Concepts, Data Sources, and Estimating Procedures xii

(May 1990). It has three major components—current,

capital, and financial accounts:

• The “current account” predominantly tracks the

flow of goods and services across the U.S. border,

which is often referred to as the “balance of trade.”

• The “capital account” monitors U.S. government

lending abroad (loans, grants, and aid). This account

is relatively small because such transactions are

narrow and uncommon.

• The “financial account” reflects U.S. foreign debts,

as well as international investment flows (such as

foreigners investing in the United States).4

3. The United States started recording its BoP in 1922. See

IMF, Comm. on Balance of Payments Stat., The Use of Balance

of Payments Statistics in the Determination of Monetary and

Fiscal Policy, at 1 (Sep. 16, 2002). The measure gained greater

prominence to track the flow of goods and services abroad during

World War II. See Vipin Arora, Beer and the Balance of Payments,

U.S. Bureau of Economic Analysis (Mar. 11, 2024), https://perma.

cc/GJ3G-RGBR.

4. Although the naming convention for each BoP component

has shifted over time, the essential elements—what the BoP tracks

and its method of calculation—remain the same. Compare IMF,

8

The current account plus the capital account minus the

financial account equals zero, reflecting the accountant’s

basic wisdom that the books have to balance. Because

the capital account is very close to zero, the current

account equals the financial account. This is the standard

accounting logic: Every import of a good (recorded in the

current account) has a corresponding payment for that

import (recorded in the financial account). Thus, when

discussing the BoP, one can discuss the current account

or the financial account interchangeably because they are

two sides of the same coin. The BoP is in deficit when the

current account is in deficit and the BoP is in surplus when

the current account is in surplus. Restated, the “current

account” dictates the BoP in the United States.

Empirically speaking, trade in goods and services

dominates the BoP. Not only is this true today—trade

currently constitutes 76 percent of the U.S. BoP—but it was

also true in 1970, when trade constituted 97 percent of the

U.S. BoP. See U.S. Bureau of Econ. Analysis, “Table 1.1, U.S.

International Transactions,” https://perma.cc/SWP2-84ZG.

As such, the BoP and trade balance move in lockstep. This

is best seen by looking at the long history of BoP surpluses

and deficits in the United States. The figure below displays

the U.S. BoP and the goods and services trade balance (the

current account). As is standard practice among economists,

these are expressed as a percentage of GDP to control for

growth over time across all economic variables.

Balance of Payments Manual (4th ed. 1977), with IMF, Balance

of Payments and International Investment Position Manual

(6th ed. 2009).

9

Source: U.S. Bureau of Econ. Analysis, “Table 1.1, U.S.

International Transactions,” https://perma.cc/SWP2-84ZG

10

These numbers speak for themselves. When there is a

trade deficit in the United States, there is almost always a

BoP deficit, 5 including in the years leading up to the 1971

trade deficit crisis. Indeed, over the last thirty years,

the ratio of the two deficits has averaged 1.02, indicating

that the BoP deficit and the trade deficit in practice are

empirically the same in the United States.6 Thus, when

the 1971 trade deficit crisis hit, it was a deep BoP crisis.

B. A White House Committed to Restoring the

Trade Balance

President Nixon, facing reelection and growing

protectionist pressures, was eager to address the trade

deficit. See, e.g., Information Memorandum from the

President’s Assistant for International Economic Affairs

(Peterson) to President Nixon, Foreign Relations of the

United States 1969-1976, 4: 260 (Dec. 10, 1971), https://

perma.cc/3NG7-MAUY. On August 15, 1971, he declared

the trade deficit a national emergency and imposed a tenpercent tariff on dutiable imports. See Proclamation No.

4074, 85 Stat. 926 (Aug. 15, 1971).

5. Slight deviations are due to a small dimension of the

current account: primary and secondary income. Primary and

secondary income includes returns on factors of production,

such as compensation for labor and financial assets, as well as

redistributions of income. While these income numbers are

relatively minimal, they are not always zero. They can thus cause

slight differences between the movement of the BoP and the trade

balance.

6.  There is some variation over time because the trade deficit

either was smaller than or larger than the BoP deficit in a given

year, but the trend line remains near 1.0.

11

The Administration used the terms BoP and balance

of trade synonymously. President Nixon, for example,

declared that “the balance of payments position of the

United States requires the imposition of a surcharge on

dutiable imports.” Id. at 926. His Treasury Department

recognized that correcting the BoP deficit required

correcting the trade deficit, noting that the “erosion of the

merchandise trade position has been a primary element

in the unsatisfactory U.S. balance of payments.” See

Paper Prepared in the Department of Treasury, Foreign

Relations of the United States 1969-1976, 3: 76 (Sept. 10,

1971), https://perma.cc/JTZ8-2KTU. President Nixon’s

trade advisers, meanwhile, wielded the ten-percent

tariff as a stick to restore the trade balance, including by

demanding that Japan reduce its trade surplus with the

United States by at least $2 billion in two years. See U.S.

Position Paper, Foreign Relations of the United States

1969-1976, 3: 95 (undated), https://perma.cc/9UGJ-KA3A.

But President Nixon’s tariff action lacked sure legal

footing. A Japanese company—Yoshida International—

had challenged President Nixon’s tariff authority in

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

Supp. 1155, 1168 (Cust. Ct. 1974) (Yoshida I). In response,

the Department of Justice argued that TWEA Section 5(b)

gave President Nixon tariff authority to remedy trade

deficit crises. Id. at 1168. The Yoshida I court rejected

that position, holding that Section 5(b) granted no such

authority. Id. at 1176. The government had appealed, but

there was no knowing if it would prevail.

C.

Congress Heeds the President’s Call

With the future of its purported tariff authority

in the appellate court’s hands, President Nixon’s team

12

turned to legislative solutions. On April 10, 1973, the

President transmitted the Trade Reform Act of 1973 to

Congress. To address the balance of payments crisis,

President Nixon referenced the country’s “international

payments imbalances” and “therefore request[ed] more

flexible authority to raise or lower import restrictions on

a temporary basis to help correct deficits or surpluses

in our payments position.” President Richard Nixon,

Special Message to the Congress Proposing Trade Reform

Legislation (Apr. 10, 1973), in The American Presidency

Project, https://perma.cc/F9MQ-487F.

Congress quickly got to work. On October 3, 1973,

the House of Representatives introduced President

Nixon’s proposal as H.R. 10710. Trade Act of 1974,

Pub. L. No. 93-168, 88 Stat. 1978 (1974). In addressing

President Nixon’s concerns about international payments

imbalances, committee reports and hearing testimony

emphasized the role of the trade balance in sending the

BoP into disequilibrium. The Senate Finance Committee,

for instance, recognized that it had to reverse the growing

trade deficit in order to reverse the country’s BoP deficit.

See S. Rep. No. 93-1208, at 11, 18. Proponents envisioned

the Act’s new tariff authority as “a response to a longcontinued deterioration in the international trading

position of the United States as reflected—until very

recent months—in continuing and enlarging deficits in our

international balance of payments.” The Trade Reform

Act of 1973: Hearings on H.R. 10710 Before the Sen. Fin.

Comm., 93rd Cong. 2400 (1974) (statement of Charles

W. Stewart, Machinery and Allied Products Institute

President).

Congress enacted President Nixon’s proposal, with

slight modifications, in the Trade Act of 1974. Pub. L.

13

No. 93-168. The Yoshida I decision seemed to be the

straw that broke the camel’s back. The Senate Finance

Committee stated:

The importance of providing such authority is

manifest in the light of the recent decision by

the United States Customs Court . . . . While

the Committee does not wish to take a position

one way or the other on the validity of the 1971

surcharge, it does feel the Executive ought

to have explicit statutory authority to impose

certain restrictions on imports for balance of

payments reasons.

S. Rep. No. 93-1208, at 88.

This legislation gave presidents precisely what

President Nixon had wanted: “additional authority to

the President temporarily to modify restrictions upon

imports into the United States in response to the balance

of payments disequilibria.” Id. at 3–4. But it also imposed

key limits: a tariff of no more than fifteen percent to last

no more than 150 days. 19 U.S.C. § 2132(a). All told,

Congress’s reference to the BoP in the Act reflected the

basic economic understanding that a BoP deficit and trade

deficit empirically move together.

II. IEEPA Cabined the President’s Power.

Congress authorized the president to address trade

deficits by imposing tariffs under Section 122. IEEPA

did not—as the Government suggests—broaden that

authority. The backdrop of IEEPA’s passage shows that

Congress enacted IEEPA to curtail the president’s nonwar emergency authorities. In the 1970s, Congress first

14

passed the National Emergencies Act (“NEA”), which

restrained the president’s ability to declare national

emergencies and invoke emergency powers. Then it passed

IEEPA, which preserved a narrow set of foreign economic

actions the president could take during a non-wartime

emergency. Before passing the two acts, Congress

expressed alarm as it meticulously detailed decades of

executive emergency power overreach, including under

TWEA. Through IEEPA, Congress imposed a clear

legislative framework within which the president must

operate, notably omitting any mention of tariffs.

A.

TWEA and the Expansive Use of Emergency

Powers

IEEPA’s purpose and scope are best understood

through an examination of its predecessor, TWEA, and

the overly expansive ways that presidents leveraged its

terms. Congress passed TWEA during World War I to

“define, regulate, and punish trading with the enemy.”

Trading with the Enemy Act, Pub. L. No. 65-91, 40 Stat.

411 (1917). Section 5(b) gave the president power to

regulate: transactions in foreign exchange; the export

or earmarking of specie or currency; and the transfer of

credit in any form “between the United States and any

foreign country.” Id. In the fifty years after World War

I, presidents reinterpreted Section 5(b) in increasingly

broad ways to justify additional executive actions on

international economic policy. Congress retroactively

authorized at least some of these expansions of executive

power. See, e.g., J. Res. of May 7, 1940, 54 Stat. 179

(retroactively approving President Franklin D. Roosevelt’s

actions freezing all U.S. transactions involving Danish and

Norwegian property). But Congress did not otherwise

expand the president’s authority under TWEA.

15

The Executive’s growing use of TWEA authority

fit within its broader expansion of emergency powers.

Between 1917 and 1974, presidents declared seven

emergencies and invoked emergency powers over one

hundred times. See generally S. Rep. No. 93-1280 (1974).

Congress disfavored presidents’ consistent and broad use

of emergency powers and emphasized that “emergencies

are by their nature rare and brief.” H.R. Rep. No.

95-459, at 10 (1977); see S. Rep. No. 93-549, at 1 (1973)

(“For 40 years, freedoms and governmental procedures

guaranteed by the Constitution have . . . been abridged by

laws brought into force by states of national emergency.”).

The Executive’s pre-IEEPA expansion of emergency

authority culminated with President Nixon’s 1971

emergency declaration concerning the trade deficit. See

Proclamation No. 4074, 85 Stat. 926 (Aug. 15, 1971). In

overturning the Yoshida I decision, the Court of Customs

and Patent Appeals held that TWEA had authorized

President Nixon’s 1971 imposition of a tariff. See United

States v. Yoshida Int’l, Inc., 526 F.2d 560, 583–84 (CCPA

1975) (Yoshida II). But that opinion made clear that any

future use of Section 5(b) to levy tariffs would need to

adhere to the limitations set forth in the then-recently

enacted Section 122. See id. at 582 n.33.

B. Congress Responds to the Expansive Use of

Emergency Power.

Recognizing that it had ceded too much authority to

the president under the auspices of emergency actions,

Congress enacted the NEA and IEEPA. The NEA

curtailed the president’s general ability to declare a

national emergency and invoke emergency powers, while

IEEPA limited the president’s powers to address non-

16

wartime economic emergencies originating from outside

the United States. In conjunction with IEEPA’s passage,

Congress restored TWEA to its original use: authority

for presidential action only during wartime emergencies.

See 91 Stat. 1625 § 101 (enacted).

Congress began its work on the NEA and IEEPA

by forming a Committee on the Termination of the

National Emergency (later renamed the Committee on

the National Emergencies and Delegated Emergency

Powers) to address concerns about presidents’ increasing

use of national emergencies to expand executive power.

See S. Res. 9, 93rd Cong. (1973) (enacted). Over a threeyear period, this committee drafted reports compiling:

statutes authorizing national emergency declarations;

declared national emergencies; and executive orders

relating to a declared emergency. See, e.g., S. Rep. No.

93-549, at iv (1973). The committee found that “hundreds

of emergency statutes confer[red] enough authority on

the President to rule the country without reference to

normal constitutional process.” S. Rep. No. 94-922, at

18 (1976). It identified three key issues with the lack of

national emergency regulations, each of which the NEA

subsequently rectified.

Fi rst , the comm itt ee found neither un i for m

requirements for declaring emergencies nor a clear

definition of an emergency. See S. Rep. No. 94-922, at 1,

15. The NEA thus required the president to specify the

statutory source of emergency authority being invoked and

to define the emergency in accordance with the statutory

source. 50 U.S.C. § 1631. Second, the committee found

that numerous emergencies had never been canceled,

which meant many Americans had lived their entire lives

under a state of emergency. See S. Rep. No. 94-922, at 1, 3.

17

The NEA responded by establishing procedures for either

Congress or the president to terminate emergencies, as

well as an automatic termination on the “anniversary” of

the declaration. 50 U.S.C. § 1622. Third, the committee

found that the use of emergency powers lacked uniform

recordkeeping and accountability. See S. Rep. No. 94-922,

at 16–17. The NEA called for regular reviews of emergency

declarations by joint resolutions of Congress, along with

detailed accountability and reporting requirements. Nat’l

Emergencies Act § 401.

A year after passing the NEA, Congress enacted

IEEPA as part of the same movement to right-size the

president’s emergency powers. See e.g., S. Rep. No. 94-922,

at 1–2 (1976) (referencing broad bipartisan and Executive

branch support for curtailing Executive emergency

powers); International Emergency Economic Powers Act,

Pub. L. 95-223, 91 Stat. 1626 (1977). Several committees

found that presidents had used economic emergencies to

advance their agendas by taking actions with only tenuous

connections to the declared emergencies. See, e.g., S. Rep.

No. 94-922, at 12–13. For example, President Roosevelt

included “vendor[s] of consumer durable goods” within

the meaning of “banking institutions” to regulate these

entities during his declared banking emergency. H.R.

Rep. No. 95-459, at 5; S. Rep. No. 94-922, at 3 (recognizing

that “disorder enveloped the whole field of emergency

statutes and procedures”).

In response, IEEPA required, among other things,

that: (1) emergencies must originate from an “unusual

and extraordinary threat” and not a general state of

emergency; (2) IEEPA’s authority “may only be exercised”

to deal with the declared emergency; and (3) the president

must consult with Congress “in every possible instance,”

18

both before and while acting under IEEPA’s authority. 50

U.S.C. §§ 1701, 1703. Of particular significance, IEEPA

permits the president only to “investigate, regulate, or

prohibit (i) any transactions in foreign exchange, (ii)

transfers of credit or payments between, by, through, or

to any banking institution . . . , [and] (iii) the importing or

exporting of currency or securities.” 50 U.S.C. § 1702(a)

(1)(A). Congress conspicuously omitted any reference to

duties or tariffs.

Finally, in the same legislation enacting IEEPA,

Congress limited TWEA to apply only during wartime

emergencies, shifting Section 5(b)’s non-wartime

emergency authorities to IEEPA. Pub. L. No. 95-223,

§ 101. Through IEEPA, Congress intended to “separate

war and nonwar authorities and procedures, preserving

existing Presidential powers in time of war declared by

Congress, and providing somewhat narrower powers

subject to congressional review in times of ‘national

emergency’ short of war.” H.R. Rep. No. 95-459, at

1. Congress stated: “[W]henever possible, authority

for routine, nonemergency regulation of international

economic transactions which has heretofore been

conducted under section 5(b) should be transferred to

other legislation.” H.R. Rep. No. 95-459, at 11.

C.

IEEPA Has Never Been Used to Authorize

Tariffs Before Now.

The post-enactment history of IEEPA shows that

IEEPA does not confer tariff authority on the president.

In the nearly fifty years since IEEPA’s passage—and

despite presidents declaring 77 national emergencies—no

president has used IEEPA to impose tariffs until now.

Christopher A. Casey et al., Cong. Rsch. Serv., R45618,

19

The International Emergency Economic Powers Act:

Origins, Evolution, and Use 60 (2025). Instead, as the

chart below illustrates, IEEPA has primarily been used

to freeze assets of a targeted nation/group or to prohibit

entire transactions (such as investing in a certain country).

Id. at 69–74. Such uses are consistent with IEEPA’s text

and do not infringe Congress’s taxing authority.

20

Similarly, no president used IEEPA’s predecessor,

TWEA, to levy a tariff until President Nixon, whose

action contributed to the passage of IEEPA as described

above. See S. Rep. No. 95-459, at 5, 11. Put simply, the

history leading up to the passage of IEEPA, along with

its consistent use by prior presidents, demonstrates that

IEEPA does not authorize tariffs to address trade deficits.

III. President Trump Must Comply with Section 122’s

Requirements When Imposing Any Tariffs to

Address Trade Imbalances.

Section 122 governs President Trump’s tariff actions

because Section 122 is the sole authority that expressly

permits tariffs to address trade imbalances.7 IEEPA,

by contrast, neither authorizes tariffs nor specifies any

authority to rectify trade imbalances. As shown above,

IEEPA cabins the president’s non-wartime emergency

authorities. It does not grant the Executive authority

to impose tariffs. Even if such authority had existed in

TWEA when President Nixon imposed a tariff—which

is questionable—Congress made clear that IEEPA

7. The Federal Circuit’s dissent asserts that even if Section

122 applies to trade imbalances, it only applies to imbalances

triggered by “fundamental international payments problems.”

V.O.S. Selections, Inc. v. Trump, 149 F.4th 1312, 1372 (Fed.

Cir. 2025) (emphasis in original). But this attempts to draw a

distinction where there is none. An import is an international

payment (after all, to make an international purchase, one must

make an international payment). The more a country imports,

the greater the international payments problem. To address

that problem, Section 122’s text, legislative history, and economic

history make plain that presidents may take “special import

measures to restrict imports.” See 19 U.S.C. § 2132(a).

21

significantly limited the President’s non-wartime

emergency powers. IEEPA’s text does not mention any

authorization to impose tariffs.

That omission is significant because Congress

referenced President Nixon’s 1971 tariff as an impetus for

constraining the president’s emergency powers through

IEEPA. Indeed, the committee report justifying IEEPA

says as much. After detailing President Nixon’s Section

5(b) tariff in the background section of the report, the

committee concluded:

The need for this legislation is apparent from

the background discussed above . . . . [S]ection

5(b) 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, without

congressional review.

H.R. Rep. No. 95-459, at 5, 7. Finally, Congress enacted

IEEPA knowing that Section 122 expressly authorized

tariffs in response to trade deficits, whether during a

national emergency or not. Legislative sources thus

indicate that IEEPA does not authorize tariffs for trade

imbalances.

But even if the Court were to hold that both Section

122 and IEEPA authorize tariffs, Section 122 still governs.

This is because Section 122—which was passed only

two years before IEEPA—is the sole tariff authority

specifically targeting trade imbalances. Where there is

overlap and conflict between two statutory provisions, “the

specific governs the general.” RadLAX Gateway Hotel,

22

LLC v. Amalgamated Bank, 566 U.S. 639, 644 (2012); see

Varity Corp. v. Howe, 516 U.S. 489, 519 (1996) (Thomas,

J., dissenting) (reasoning that this principle is especially

true where “Congress has enacted a comprehensive

scheme and has deliberately targeted specific problems

with specific solutions”).

The Government concedes that Section 122 and IEEPA

“are overlapping.” Gov’t. Opening Br. 4. It nevertheless

claims the two statutes do not conflict because “IEEPA

addresses emergencies whether or not they involve trade

deficits, and Section 122 addresses trade deficits whether

or not they involve declared emergencies.” Id. But even

under the Government’s own framing, the two statutes

conflict. When there is a trade deficit emergency, the

president is either limited to a fifteen-percent tariff for

no more than 150 days (Section 122), or he is not (IEEPA,

as the Government construes it).

The Government claims that presidents can choose

which statute to follow. Id. But absent express

congressional instruction, presidents cannot simply choose

to discard Section 122 in a trade deficit emergency. See

Epic Sys. Corp. v. Lewis, 584 U.S. 497, 510 (2018) (“We

come armed with the strong presumption that repeals

by implication are disfavored.” (cleaned up)). That is

particularly so because Congress enacted IEEPA just

two years after it enacted Section 122. If Congress had

intended for IEEPA to displace Section 122’s restrictions,

it needed to have said so. See id. (“Congress will

specifically address preexisting law when it wishes to

suspend its normal operations in a later statute.” (internal

quotation marks omitted)). Discarding Section 122’s

tariff limitations in the trade deficit emergency context is

23

particularly troubling because Congress enacted Section

122 in direct response to a trade deficit that President

Nixon declared to be a national emergency. To now hold

that IEEPA—and not Section 122—permits unfettered

presidential imposition of tariffs to address trade deficit

emergencies is to nullify Section 122 for the very situation

Congress enacted it.

Holding that presidents can choose between Section

122 and IEEPA also defies Congress’s manifest intent

to ensure that presidents do not have open-ended tariff

authority. In enacting Section 122, Congress recognized

that presidents needed the ability to impose tariffs to

address trade deficit emergencies. But it sought to

address concerns about the dangers of handing presidents

unrestricted tariff power, even during an emergency:

Since there is evidence that the President

probably needs authority to act in emergencies,

it is better that this authority be provided

explicitly by law and its limits spelled out . . . .

[T]he 150-day limitation . . . should ensure

that the authority is not invoked for purely

protectionist purposes or to avoid taking more

politically difficult actions.

Hearings on H.R. 10710 Before the Sen. Fin. Comm., at

2403.

Congress drafted Section 122 with clear limits: no

more than 15 percent and no longer than 150 days. See

19 U.S.C. § 2132(a). To interpret IEEPA as lifting those

limits—without Congress expressly saying so—defies

Section 122’s very purpose. It also gets the courts and

24

the president into the dangerous business of legislating.

See Morton v. Mancari, 417 U.S. 535, 551 (1974) (where

Congress has provided no clear and manifest intent

to repeal, the Court has no power to repeal). Because

Congress did not expressly repeal Section 122 as a tool to

address trade deficit emergencies, neither the courts nor

the president can choose to do so now. President Trump

is bound by Section 122’s limitations.

CONCLUSION

This Court should affirm the Federal Circuit’s

conclusion that IEEPA does not authorize tariffs to

address trade deficits.

Respectfully Submitted,

Erica Hashimoto, Director

Counsel of Record

John Peng

Max A lderman

A ppellate Litigation Clinic

Georgetown University Law Center

111 F Street, N.W., Suite 306

Washington, DC 20001

(202) 662-9000

eh502@georgetown.edu

Counsel for Amici Curiae