Courts Can Review National Emergency Declarations Under IEEPA, Plaintiffs Tell CIT
No national emergency or "unusual and extraordinary threat" exists to justify invoking the International Emergency Economic Powers Act to impose tariffs on all U.S. trading partners, the Liberty Justice Center argued. Filing its reply brief in support of its bid for both a preliminary injunction and summary judgment at the Court of International Trade, the conservative legal advocacy group argued that the trade court can review President Donald Trump's declaration of a national emergency (V.O.S. Selections v. Donald J. Trump, CIT # 25-00066).
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"IEEPA was passed with the express purpose of limiting the President’s emergency powers," yet Trump now claims Congress' intent "was to simply grant him a blank check," the brief said. If that ultimate deference is to be afforded, the standards laid out in IEEPA, including the requirement that the president act to address an "unusual and extraordinary threat," would become "superfluous," the center argued.
Without judicial review, there would be no need for any president to identify an "unusual or extraordinary threat" when invoking IEEPA. The "only purpose" of the language "could be for courts to judge the President’s assertions against the standards imposed upon him by Congress," the brief said. While the U.S. argued that Congress gave the authority to review such presidential declarations itself (see 2504300037), the center argued that the fact Congress created a procedure "by which it might express its opinion hardly divests courts of their inherent judicial power to interpret the law."
If a president can "declare an entirely normal state of affairs an emergency, then anything can be an emergency, and absurdities flow without end," the brief said. The center illustrated this point by arguing that the president could declare the incomes of country club golf professionals to be a national emergency and impose tariffs on "teaching aids that provide alternative golf instruction" on the theory that shoddy foreign instructional resources amount to an "unusual and extraordinary threat to his handicap."
The brief also made reference to Trump's recent tariffs on foreign-produced movies as another illustration of the absurdity stemming from the government's read of IEEPA. "The political question doctrine has never countenanced such absurdities," the brief said.
The center also argued that IEEPA doesn't authorize the president to impose tariffs, lambasting the government's claim that the word "regulate" in the statute lets the president impose limitless tariffs on all U.S. trading partners. The advocacy group characterized the government's use of the word "regulation" as a "get-out-of jail-free card," adding that if this were the case, there's "truly no limit on the President’s tariff authority."
The word "regulate" doesn't include the power to tax or tariff, the brief said, citing legal definitions of the term, Supreme Court precedent and Article I of the U.S. Constitution. The Constitution itself has one distinct provision giving Congress the power to impose taxes and duties and another conveying the power to regulate trade, the brief said.
The U.S. said the word "regulate" would mean little more than to "prevent or prohibit," which are words already in the statute. In response, the center argued that "regulate" isn't "extensive with the power to prevent or prohibit." There are many ways to "control" other than to "prevent or prohibit," and the power to "regulate" in the context of IEEPA may merely "provide a lesser power than categorical prohibition." For instance, under IEEPA, the president may prohibit importation of some dangerous items but impose "less extreme regulatory constraints, such as safety inspections, on other imports."
The center additionally sought to distinguish its case from Yoshida International v. U.S., in which the U.S. Court of Appeals for the Federal Circuit's predecessor court let President Richard Nixon impose a 10% duty surcharge under the Trading With the Enemy Act, IEEPA's predecessor that uses nearly identical language.
The Yoshida court specifically rejected the notion that the president could disregard duty rates set by Congress merely by declaring a national emergency, the brief said. "Yoshida would require this Court still hold that the Liberation Day tariffs are not authorized by IEEPA because Yoshida rejected the broad assertion of unilateral presidential authority to impose tariffs, holding that it would subvert congressional intent," the brief said.