NYU Law Think Tank Pens Amicus Brief in IEEPA CIT Case on Major Questions Doctrine
The Institute for Policy Integrity, an economic law think tank housed at the NYU School of Law, filed an amicus brief in the lead case at the Court of International Trade on tariffs imposed under the International Emergency Economic Powers Act to discuss the "major questions" doctrine. The institute said the plaintiffs filing the case, represented by conservative legal advocacy group Liberty Justice Center, "do not fully state the doctrine or properly explain why it is triggered here" (V.O.S. Selections v. Trump, CIT # 25-00066).
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The "major questions" doctrine generally refers to the legal theory recently adopted by the Supreme Court that says the executive can only rule on issues of great economic or political significance upon explicit delegation from Congress. The Liberty Justice Center said the doctrine compels the rejection of President Donald Trump's use of IEEPA to impose tariffs, since the statute doesn't convey specific enough authority to impose tariffs (see 2504140061).
The amicus brief said that while litigants often claim that the doctrine is implicated only when questions of "economic and political significance" arise, the amicus said the Supreme Court has "never found these factors alone sufficient to trigger the doctrine." Instead, cases that invoke the doctrine have to be "extraordinary cases."
The cases the high court has found to be "extraordinary" are ones in which the "history and the breadth of the authority" the federal government has asserted and the "economic and political significance" of that assertion provide a "'reason to hesitate before concluding that Congress' meant to confer such authority," the brief said. Putting "dispositive weight" on only the economic or political significance of the power being challenged "would apply the doctrine in many ordinary cases," the brief said.
The plaintiffs in the IEEPA case's use of the doctrine "relies too heavily on economic and political significance, and not sufficiently on the two factors that play the key role in the Supreme Court’s major questions decisions," the amicus said. Specifically, the high court's "focus on history and breadth" of the asserted authority are central to its application of the doctrine, the brief said.
The institute went on to argue that Trump's use of IEEPA to impose tariffs qualifies as an "extraordinary" case under this framework. First, the amicus said Trump's actions are "unheralded," since no president has ever used IEEPA to impose tariffs in the nearly 50 years the law has been in existence. The action is also "transformative," since it takes a law meant to apply sanctions, asset freezes and similar measures "to address acute emergencies" and "transforms it into a blank check to the president to rewrite all congressional trade policy."
The move is also "politically and economically significant," as the Liberty Justice Center claims, since "it would have massive impacts on U.S. revenues and gross domestic product and has been the subject of 'earnest and profound debate across the country,'" the brief said.
Since the IEEPA tariffs invoke the major questions doctrine, the U.S. must identify "clear congressional authorization" supporting them, the amicus said. The brief said while the word "regulate" in IEEPA may encompass tariffs when "shorn of all context," the word "should be assessed with an eye toward broader context including statutory history and its place among other provisions," the brief said.