CAFC Receives 5 Amicus Briefs in Support of Suit Against IEEPA Tariffs
Five different groups of amici on July 8 filed briefs in the case before the U.S. Court of Appeals for the Federal Circuit on the legality of President Donald Trump's tariffs imposed under the International Emergency Economic Powers Act. All five briefs argued against the tariffs, though they differed in their specific approach or legal arguments (V.O.S. Selections v. Donald J. Trump, Fed. Cir. # 25-1812).
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The amici are: consumer advocacy group Consumer Watchdog; the Cato Institute; the Institute for Policy Integrity at New York University School of Law; Peter Sage, a retired reporter; and a group consisting of constitutional scholars, legal historians, public lawyers, a retired federal judge, a former attorney general and three former U.S. senators.
The Cato Institute argued that historical practice confirms that tariff-setting is a "nondelegable legislative power" and that IEEPA doesn't let the president modify tariff rates. Meanwhile, Consumer Watchdog argued that IEEPA doesn't confer "unambiguous authority to impose tariffs," adding that, if it did, "it would constitute an unconstitutional delegation of legislative authority."
NYU's Institute for Policy Integrity's brief narrowly focused on the major questions doctrine, which is a judicial principle standing for the proposition that Congress must explicitly let the Executive regulate on issues of massive political and economic significance. The institute clarified the precise standard the Supreme Court uses for invoking the doctrine, then argued that Trump's tariffs clear that standard.
Sage's brief laid out a broader rebuke of presidential overreach. "Unchecked executive tariff authority could set a perilous precedent, enabling similar unilateral executive encroachments into other congressional domains, including the civil service and the judiciary, thereby disrupting the delicate constitutional balance," Sage argued.
Lastly, the group of lawyers, historians and former government officials argued that IEEPA categorically doesn't impose tariffs. The brief said IEEPA doesn't mention tariffs, Congress "deliberately rejected tariff authority in IEEPA," the president's declaration of an emergency doesn't change the analysis, Trump's tariffs are "permanent policy rather than emergency measures," no president has ever used IEEPA to impose tariffs, and the Supreme Court "has repeatedly rejected Executive Branch efforts to arrogate to itself sweeping power in the absence of clear text."
The lawyers, historians and former officials also responded to an argument from a Trump-aligned advocacy group arguing that the tariffs are all also valid under Section 338, a broad statute letting the president impose tariffs up to 50% "whenever the President shall find as a fact that any foreign country places any burden or disadvantage" on U.S. commerce" (see 2506240060).
In response to the Trump-aligned group's claims, the lawyers, historians and former officials said Section 338 "has been superseded and cannot supply the missing tariff authority." The brief said Section 338 was first superseded by Section 252 of the Trade Expansion Act of 1962, which "transferred responsibility for precisely the same problem" to a "far more detailed framework," then again in Section 301 of the Trade Act of 1974.
"Reading § 338(d) as still operative would ignore Congress’s unmistakable decision to replace Depression‑era carte‑blanche with modern, cabined authority," the brief said. "Nothing in the text or history of the later statutes suggests that Congress meant to leave Smoot‑Hawley’s dormant 50% tariff power lurking in the U.S. Code."