Respondents Brief — Donald J. Trump, President of the United States, et al., Petitioners v. V.O.S. Selections, Inc., 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 Petition for Writ of Certiorari to the

United States Court of Appeals for the Federal

Circuit

_____________

BRIEF FOR STATE RESPONDENTS

_____________

DAN RAYFIELD

Attorney General of Oregon

BENJAMIN GUTMAN

Solicitor General

Counsel of Record

1162 Court Street NE

Salem, Oregon 97301

(503) 378-4402

benjamin.gutman@

doj.oregon.gov

(Additional counsel listed on signature pages)

QUESTIONS PRESENTED

1. Whether the International Emergency Economic

Powers Act (IEEPA), Pub. L. No. 95-223, Tit. II, 91

Stat. 1626, authorizes the tariffs imposed by President

Trump pursuant to the national emergencies declared

or continued in Proclamation 10,886 and Executive

Orders 14,157, 14,193, 14,194, 14,195, and 14,257, as

amended.

2. If IEEPA authorizes the tariffs, whether the

statute unconstitutionally delegates legislative

authority to the President.

i

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED ......................................... i

BRIEF FOR STATE RESPONDENTS ....................... 1

CONCLUSION ............................................................ 9

TABLE OF AUTHORITIES

Cases

Alabama Ass’n of Realtors v. Dep’t of Health &

Human Servs.,

594 U.S. 758 (2021) ........................................................ 4

Biden v. Nebraska,

600 U.S. 477 (2023) .................................................... 3, 5

City of Grants Pass v. Johnson,

603 U.S. 520 (2024) ........................................................ 7

FCC v. Consumers’ Research,

145 S. Ct. 2482 (2025).................................................... 5

Federal Energy Admin. v. Algonquin SNG, Inc.,

426 U.S. 548 (1976) ........................................................ 3

Gibbons v. Ogden,

22 U.S. (9 Wheat) 1 (1824)............................................ 2

Nat’l Fed’n of Indep. Bus. v. OSHA,

595 U.S. 109 (2022) ........................................................ 4

Pittsburgh & Lake Erie R. Co. v. Ry. Labor

Executives’ Ass’n,

491 U.S. 490 (1989) ........................................................ 6

Trump v. CASA, Inc.,

145 S. Ct. 2540 (2025).................................................... 1

ii

Utility Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ........................................................ 4

West Virginia v. EPA,

597 U.S. 697 (2022) ........................................................ 4

Constitutional and Statuatory Provisions

19 U.S.C. § 1862(a) ...................................................... 3

5 U.S.C. § 1702(a) ........................................................ 2

International Emergency Economic Powers Act,

Pub. L. No. 95-223, Tit. II, 91 Stat. 1626 ................. i

U.S. Const., Art. I, § 8, cl. 1 ......................................... 1

iii

BRIEF FOR STATE RESPONDENTS

Congress, not the President, has the “Power To lay

and collect Taxes, Duties, Imposts and Excises.” U.S.

Const., Art. I, § 8, cl. 1. But petitioners argue that the

International Emergency Economic Powers Act

(IEEPA) grants the President the power to impose tariffs on any country, at any rate, and for however long

he likes. The President’s chaotic implementation of

that purported authority, which changed by the day

and wreaked havoc on capital markets and the economy, illustrates both the breadth of powers that the

President claims and the danger of unlimited authority

in this domain.

The en banc Federal Circuit, like every other court

that has addressed the question, correctly held that

IEEPA does not authorize any of the tariffs the state

respondents challenged. But the issue is undoubtedly

of great national importance. Thus, although the Federal Circuit got it right—and although the petition is

littered with inaccuracies, hyperbole, and citations to

material outside the summary judgment record—the

state respondents agree that this Court should grant

expedited review. Cf. Trump v. CASA, Inc., 145 S. Ct.

2540, 2571 (2025) (Kavanaugh, J., concurring) (“One of

this Court’s roles, in justiciable cases, is to resolve major legal questions of national importance and ensure

uniformity of federal law.”). The Court should take this

opportunity to resolve definitively the straightforward

2

question of statutory interpretation presented here.

And it should affirm.

Because of the agreement among the parties that

certiorari is warranted and our stipulation to an expedited briefing schedule on the merits, the state respondents do not argue the merits in full at this time.

But a brief outline of the arguments may help the

Court understand the scope of the questions presented.

1. The state respondents’ case challenges two sets of

tariffs that the President imposed earlier this year.

The first set is what the Federal Circuit called the “Reciprocal Tariffs,” which the President imposed on

nearly every country to address what he characterized

as “Large and Persistent” trade deficits. Pet. App. 7a,

67a. The second set is what the Federal Circuit called

the “Trafficking Tariffs,” which the President imposed

on Mexico, Canada, and China, purportedly to address

drug smuggling and other criminal activity. Pet. App.

4a–5a. The President relied on IEEPA as the source of

authority to impose both tariffs. Pet. App. 6a, 8a.

2. IEEPA does not authorize either set of tariffs, if it

authorizes tariffs at all. During a declared national

emergency, IEEPA grants the President the power to

“regulate” the “importation or exportation” of “any

property in which any foreign country or a national

thereof has any interest.” 5 U.S.C. § 1702(a). Petitioners argue that “regulate” in this context includes the

power to impose tariffs—that is, the power to tax. See

Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 201 (1824)

(“[T]he act of laying ‘duties or imposts on imports’ … is

3

considered as a branch of the taxing power.”). But petitioners cannot identify any other statute in the

United States Code that uses the word “regulate” to

authorize taxes or tariffs. Not one.

The closest petitioners can find is the statutory

phrase “adjust the imports” in Section 232 of the Trade

Expansion Act of 1962, which this Court construed to

permit licensing fees. See Federal Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 571 (1976). But there

are at least three key differences between Section 232

and IEEPA. First, Section 232 uses the term “adjust,”

not “regulate.” Second, Section 232 refers explicitly to

“the duty … on any article,” 19 U.S.C. § 1862(a), which

provides context for the meaning of “adjust” in a following subsection. IEEPA does not mention duties. Third,

Algonquin relied in large part on unusually clear legislative history showing that Congress believed that the

provision would authorize the President to impose “tariffs.” 426 U.S. at 563–64. IEEPA has no comparable

legislative history.

Even if “regulate” could mean “tax” in some contexts, principles of statutory construction like the major questions doctrine and constitutional avoidance

confirm that it does not in this context. See Biden v.

Nebraska, 600 U.S. 477, 508 (2023) (Barrett, J., concurring) (explaining that the major questions doctrine

is rooted in “the importance of context”) (emphasis in

original). The President’s invocation of IEEPA to impose the tariffs at issue here goes even further than

other “almost unlimited” exercises of authority that

4

this Court has disapproved in recent years. See Nat’l

Fed’n of Indep. Bus. v. OSHA, 595 U.S. 109, 126 (2022)

(Gorsuch J., concurring). Once again, the President

“claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the

American economy”—or, in this case, the world economy. Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324

(2014) (cleaned up). Yet the history, breadth, and economic and political significance of the President’s actions provide “reason to hesitate before concluding that

Congress meant to confer such authority.” West Virginia v. EPA, 597 U.S. 697, 721 (2022) (cleaned up).

As in those cases, IEEPA’s use of the word “regulate” is “a wafer-thin reed on which to rest” the sweeping authority that the President claims. Alabama Ass’n

of Realtors v. Dep’t of Health & Human Servs., 594 U.S.

758, 765 (2021). The U.S. imports more than $4 trillion

of goods annually, representing 14 percent of the U.S.

economy. Pet. App. 37a. Under petitioners’ reading of

IEEPA, Congress delegated to the President the authority to impose tariffs of any amount, and for any

length of time, on all of that trade. Whatever else might

qualify as a decision of “vast economic and political significance,” Utility Air Regul. Grp., 573 U.S. at 324,

across-the-board taxes on large swaths of the economy

fit the bill. And the principle of constitutional avoidance reinforces that conclusion, because the nondelegation doctrine requires Congress to give “greater”

guidance when, as here, executive action “will affect

5

the entire national economy.” FCC v. Consumers’ Research, 145 S. Ct. 2482, 2491 (2025).

Petitioners are wrong to claim that the Federal Circuit’s holding is “textually incoherent” merely because

it leaves open the possibility that IEEPA would allow

more modest tariffs. Pet. 24. This Court could conclude,

as the state respondents have argued and as the concurrence below agreed, that “IEEPA does not authorize

the President to impose any tariffs.” Pet. App. 48. But

this Court need not decide that question to affirm the

majority’s narrower but still textually coherent holding.

Just like the statutory term “modify” in Biden v. Nebraska meant “modest” rather than transformational

adjustments to the laws governing student loans, 600

U.S. at 495, the term “regulate” (assuming it allows

tariffs at all) connotes at most modest changes to the

tariffs schedule, but not unlimited authority to rewrite

it. Indeed, petitioners’ cherry-picked dictionary definition for “regulate”—“adjust,” see Pet. 19—has precisely

that connotation. Webster’s Third New International

Dictionary 23 (unabridged ed. 2002) (note on synonyms

for “adapt” explaining that to “adjust” usually suggests

“no significant alteration or modification but rather a

bringing into a correspondence or harmony, prearranged or clearly possible but not quite achieved previously”). The Federal Circuit’s holding might allow

6

revenue-raising measures in edge cases, but this case

is not close: Petitioners have taxed, not regulated.

3. Furthermore, this Court can affirm the Federal Circuit’s decision on at least three alternative grounds

presented by the state respondents below, including

the bases for the Court of International Trade’s ruling.

Pet. App. 177a–181a, 190a–194a.

First, with respect to the Reciprocal Tariffs, the

power to “regulate … importation”—even if it allows

tariffs generally—does not include the power to exceed

the limits Congress set in Section 122 of the Trade Act

of 1974. Section 122 provides that “[w]henever fundamental international payment problems require special import measures to restrict imports … to deal with

large and serious United States balance-of-payments

deficits,” the President “shall proclaim, for a period not

exceeding 150 days (unless such period is extended by

Act of Congress) … a temporary import surcharge, not

to exceed 15 percent ad valorem, in the form of duties.”

19 U.S.C. § 2132(a). The statute directly addresses the

President’s authority to impose tariffs to deal with

“large and serious” trade deficits, and it limits the tariffs to 15 percent and 150 days. Nothing in IEEPA purports to override those limits.

That conclusion does not depend on the proposition

that Section 122 “displaces” IEEPA. Pet. 27. Rather, it

harmonizes the general grant of emergency authority

in IEEPA with the specific limits for one type of emergency in Section 122. See, e.g., Pittsburgh & Lake Erie

R. Co. v. Ry. Labor Executives’ Ass’n, 491 U.S. 490, 510

7

(1989) (observing that “when two statutes are capable

of co-existence, it is the duty of the courts, absent a

clearly expressed congressional intention to the contrary, to regard each as effective”). That understanding

comports with Congress’s intent for IEEPA to cover

“unforeseen contingencies”—not problems that Congress had addressed in other statutes. H.R. Rep. No.

95-459, at 10 (1977).

Second, the Reciprocal Tariffs also violate IEEPA’s

separate requirement that its powers be used only to

deal with an “unusual and extraordinary threat.”

50 U.S.C. § 1701. Trade deficits are not “unusual” because, as the President stated in imposing the Reciprocal Tariffs, “annual U.S. goods trade deficits” are “persistent.” Exec. Order No. 14,257, 90 Fed. Reg. at

15,041. “Persistent” is the opposite of “unusual.” See

City of Grants Pass v. Johnson, 603 U.S. 520, 543

(2024) (concluding that a city’s fines for unauthorized

camping were not “unusual” because “similar punishments have been and remain among ‘the usual mode[s]’

for punishing offenses throughout the country”). Nor

are trade deficits “extraordinary” when Congress anticipated them and provided the President ordinary

tools of trade law in Title 19, such as Section 122, to

address them.

Finally, the Trafficking Tariffs violate IEEPA’s requirement that emergency economic powers “may only

be exercised to deal with” certain threats and not “for

any other purpose.” 50 U.S.C. § 1701(b). The tariffs are

not targeted at fentanyl or related products or any

8

aspect of illicit drug trafficking, immigration, or crime

more generally. They apply to almost all goods imported from the affected nations, regardless of whether

any particular good has a reasonable connection to fentanyl trafficking or any of those other bases. Petitioners contend that the tariffs deal with those problems

“indirectly through leverage,” Pet. 28, but that does not

satisfy IEEPA’s requirement. See Pet. App. 191a–194a

(explaining the point). Taxing tomatoes does not “deal

with” fentanyl. If that is dealing with the threat of traffickers, then anything is.

9

CONCLUSION

This Court should grant certiorari and expedite

briefing and argument.

Respectfully submitted,

DAN RAYFIELD

Attorney General of

Oregon

BENJAMIN GUTMAN

Solicitor General

Counsel of Record

DUSTIN BUEHLER

Special Counsel

BRIAN SIMMONDS

MARSHALL

CHRISTOPHER A.

PERDUE

LEIGH SALMON

Senior Assistant

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Salem, OR 97301

(503) 378-4402

benjamin.gutman@doj.oregon.gov

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