CAFC Fields Total of 20 Amicus Briefs in Lead IEEPA Tariff Suit

Only two of the briefs came from Trump-aligned legal groups, which argued, among other things, that the tariffs also can be upheld under Section 338, if not IEEPA itself (see 2506240060).

Two of the amicus briefs came from parties that brought their own lawsuits against the IEEPA tariffs but are being held up while the lead appeal wraps up. Two more of the briefs came from two separate groups of former government officials, historians and legal scholars, while two more of the briefs came from individual legal scholars. A group of 27 economists filed their own brief, critiquing the tariffs from both an economic and a legal perspective.

Eight of the briefs came from advocacy groups or trade associations, including the Cato Institute, the Brennan Center for Justice and the U.S. Chamber of Commerce, and one brief came from 191 Democratic members of Congress, including 29 senators and 162 representatives. Lastly, two individual small importers filed their own amicus briefs contesting the tariffs.

The brief from the 191 members of Congress contested the government's claim that IEEPA lets the president impose tariffs through its language letting the president "regulate ... importation." The lawmakers said that when Congress delegates its authority to impose tariffs, it does so "explicitly and with procedural safeguards." Specifically, when Congress delegates its "tariff-raising authority, it imposes substantive limitations and procedural controls on the imposition of tariffs," the brief said.

The members of Congress added that IEEPA categorically doesn't allow for tariffs, given the statute's specific language and the fact that Congress has shown it knows how to "clearly and unmistakably authorize tariffs when it wants to" and didn't do so here. The brief added that IEEPA's "legislative history and historical practice confirm it does not delegate Congress's tariff power" and that letting the president use IEEPA to impose tariffs "would allow the Executive to usurp trade power."

The members argued that the tariffs don't just modify the statutory tariffs Congress has approved, "except perhaps 'in the same sense that the French Revolution modified the status of the French nobility,'" but, rather, it has "abolished them" without any statutory delegation of power.

One of the amici, the Brennan Center for Justice, argued that IEEPA and the National Emergencies Act were passed to "circumscribe" presidential use of emergency powers, adding that the executive orders cut against congressional intent in enacting these statutes. Other amici, the Goldwater Institute and the Dallas Market Center, argued that the founders were familiar with unilateral executive-branch taxation and "prohibited it," noting that the "intelligible principles test" that guides delegation of power shows why IEEPA doesn't delegate the power to tax.

The New Civil Liberties Alliance, one of the plaintiffs in a parallel IEEPA tariff suit, filed its own amicus brief, arguing that "regulate ... importation" has a "different meaning than in" the Trading With the Enemy Act (TWEA), IEEPA's predecessor. The brief seeks to distinguish a key precedent, Yoshida International v. U.S., in which the Federal Circuit's predecessor court upheld President Richard Nixon's 10% duty surcharge based on TWEA's grant of power to the president to "regulate ... importation."

The alliance added that the history of U.S. tariff policy makes clear that when the president claims to use IEEPA to set tariffs above the base level set by Congress, "he acts at the nadir of his constitutional authority."

Briefs from five of the amici, led by the U.S. Chamber of Commerce, legal scholar Vikram Amar, IEEPA litigant Princess Awesome, advocacy group Advancing American Freedom and the Protect Democracy Project, all raised separation-of-powers concerns raised by Trump's use of IEEPA to impose tariffs. The Chamber of Commerce argued that Trump's tariff powers are limited to those "expressly granted by Congress," adding that the economic harms inflicted by the IEEPA tariffs "underscore their illegality." Amar said that "broad and difficult-to-reclaim delegations of legislative power pose profound separation-of-powers concerns."

The group of 27 economists, meanwhile, challenged Trump's claim that prolonged trade deficits are an "unusual and extraordinary" threat to U.S. economic and security interests, which is a prerequisite to invoking IEEPA. The economists said trade deficits are neither "unusual" nor are they even a threat to the U.S. economy. In addition, the economists argued that the tariffs don't "meaningfully reduce" trade deficits, failing the statute's requirement that the action taken under IEEPA "deal with" the declared emergency.

A brief from a group of former federal judges, members of Congress, senior DOJ and White House appointees and other government officials, added its voice to the mix, arguing against the Trump-aligned amici's claim that Section 338 can be used to uphold the tariffs. The brief said that the Federal Circuit can't uphold the reciprocal tariffs based on a law neither cited in Trump's EO nor argued in the government's briefing.

The remaining amici, 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, also tackled various of the plaintiffs' lawsuit (see 2507080071).