Former Lawmakers, Judges File Amicus Brief Against IEEPA Tariffs at Trade Court
A group of constitutional scholars, lawyers, retired federal judges and former U.S. senators and politicians filed an amicus brief at the Court of International Trade in the case on President Donald Trump's use of the International Emergency Economic Powers Act to impose tariffs. The amici, led by former Virginia senator and governor George Allen, argued that IEEPA "cannot bear [the] weight" of Trump's trade action, adding that the statute only permits "limited and targeted actions under narrow conditions" and not "sweeping economic realignment" (V.O.S. Selections v. Donald J. Trump, CIT # 25-00066).
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The amici include former senators John Danforth and Charles Hagel, former U.S. Attorney General Michael Mukasey and former executive director of the 9/11 Commission Philip Zelikow. Also named on the brief are Professor Seven Calabresi, co-chair of the conservative Federalist Society; Professor Richard Epistein; and former appellate judges Michael McConnell and John Tinder.
The brief was filed in a suit at CIT brought by five companies that are challenging the legality of Trump's "Liberation Day" tariffs (see 2504210050). The court recently rejected an application for a temporary restraining order against the tariffs, since the five companies failed to show they would suffer irreparable harm before the court could consider their motion for a preliminary injunction.
In their brief, the amici argued that IEEPA doesn't authorize tariffs, claiming that the law's "text, context, and legislative history point to a different purpose: to empower the President to block or freeze foreign assets and financial transactions in targeted, temporary ways" and not to "raise revenue or rewrite the core terms of international commerce."
The brief reflected on the terms of the statute itself, which give the president the power to "regulate" imports to address an "unusual and extraordinary" emergency. The amici said "Congress employed seven different verbs to capture the intended types of economic sanction, but did not include the term 'tax' or any of its synonyms." If the legislature meant to delegate the power to impose tariffs under IEEPA, "it surely would have said so," the brief said.
In fact, Congress "deliberately rejected tariff authority in IEEPA," the amici said, arguing that nothing in the statute's history suggests Congress meant to hand over "tariff-making power." Citing the House Report accompanying the bill, the amici said Congress laid out the key powers carried over from the Trading With the Enemy Act, IEEPA's predecessor, in enacting the statute. "Notably absent from that list is any power to raise import duties or impose new tariffs," the brief said.
The amici went on to argue that the tariffs aren't "emergency measures," but rather are "permanent policy." The duties aren't "tied to a discrete or time-sensitive emergency," nor are they "temporary." Instead, they are meant to remain in effect indefinitely and to respond to "broad, persistent conditions." Trump has "made no effort to conceal this long-term intent," the brief said, citing the official White House Fact Sheet, which says the duties are meant to address the U.S. trade deficit.
The amici added that the president's defense of the duties isn't "saved by the word 'emergency.'" The brief said no emergency exists, "and even if one did, the Constitution is not suspended during crises. The Framers understood the danger of emergency rule. They designed a system to resist it." In fact, courts have long said statutes "grounded in emergency cannot be stretched to support open-ended policymaking, especially where the alleged threat is neither imminent nor novel," the brief said.
The tariffs also "lack clear legal authority," since the court has repeatedly rejected "sweeping power from ambiguous text," the brief said. The amici embraced the Supreme Court's recent "major questions doctrine," which says the executive can only regulate on issues of major political or economic significance upon an explicit delegation of authority from Congress.