Group of Scholars, Former Gov't Officials Urges SCOTUS to Preemptively Hear IEEPA Tariff Suit
A group of constitutional scholars, legal historians, a former appellate judge, a former attorney general and three former U.S. senators urged the Supreme Court on July 17 to take up two importers' case against the legality of tariffs imposed under the International Emergency Economic Powers Act. The amici argued that President Donald Trump's IEEPA tariffs clearly violate the constitutional order and, if upheld, would let the president use IEEPA " to reshape U.S. economic policy, and indeed the global economy more generally, without involving Congress" (Learning Resources v. Donald J. Trump, Sup. Ct. # 24-1287).
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The brief comes amid importers Learning Resources' and Hand2Mind's petition to have the Supreme Court decide whether IEEPA allows for tariffs prior to the U.S. Court of Appeals for the D.C. Circuit having a chance to first hear the case (see 2506160019). In May, the U.S. District Court for the District of Columbia held that IEEPA categorically doesn't let the president impose tariffs (see 2505290037).
The U.S. opposed the importers' bid to jump the D.C. Circuit's appeal of the D.C. trial court's decision, arguing that the D.C. court doesn't have jurisdiction over the case and that the importers' case fails on the merits (see 2507170052).
In response to Learning Resources and Hand2Mind, various legal scholars and historians and former government officials filed an amicus brief in support of having the Supreme Court take up the case. The amici, who also filed an amicus briefs at the D.C. court and at the U.S. Court of Appeals for the Federal Circuit, include former Sens. George Allen, John Danforth and Charles Hagel and former attorney general Michael Mukasey.
In their brief, the amici argued that it's Congress, not the president, that has the power to impose tariffs. The framers of the U.S. Constitution "went out of their way to list 'duties' and 'imposts' as within the legislative domain," laying tariffs "at the core of the taxing power," the brief said. Since the start of the country, "Congress has distinguished between delegations of authority to impose taxes, including tariffs, which are the core of Congress’s power of the purse, and delegations of authority to impose embargoes and other non-tax economic sanctions, which inextricably relate to foreign policy, a largely presidential domain," the brief said.
The amici added that IEEPA doesn't authorize tariffs, arguing that the statute intentionally doesn't mention tariffs and that Congress deliberately rejected tariff authority in enacting IEEPA. The statute only lets the president "regulate ... importation," and the "power to regulate is not the power to tax," the brief said.
Congress never used the word "tax" or any of its synonyms in IEEPA, and if "Congress had intended to delegate the power of taxing ordinary commerce, it surely would have said so," the amici argued. In addition, all the actions permitted under IEEPA "have their effects abroad," whereas tariffs are paid by Americans, the brief said. Tariffs "fall squarely within Congress’s taxing power and, under the Constitution, require the explicit consent of the people’s representatives."
The brief thoroughly discussed the only appellate-level decision on the issue, Yoshida International v. U.S., in which CAFC's predecessor court upheld President Richard Nixon's 10% duty surcharge under the Trading With the Enemy Act, IEEPA's predecessor that used identical relevant language to what's in IEEPA. The amici said in passing IEEPA, Congress pared back presidential power as found in TWEA, confining the original TWEA powers to "wartime," and allowing the president to use the remaining powers in peacetime only upon a "declaration of emergency under the Emergencies Act, which would be subject to fast-track review and invalidation by Congress."
Then, the Supreme Court declared legislative vetoes, like the one found in the Emergencies Act, unconstitutional, stripping Congress of the "central safeguard it enacted" with IEEPA, the brief said. "It is nonetheless a fallacy to impute to Congress the intention to give the President unilateral tariff authority, when Congress voted specifically to subject any such decisions to congressional review."
The amici argued Trump's declared emergencies, which center on trade deficits and the flow of fentanyl "even if real," don't change the analysis. Adhering to the Constitution isn't a choice, the amici argued, adding that the "Founders deliberately vested taxing authority in the legislative branch to ensure broad deliberation and democratic legitimacy." Emergencies don't create new constitutional powers "nor expand authority explicitly withheld. The Constitution remains binding even during emergencies."
The brief also said that Trump's IEEPA tariffs are "permanent policy rather than emergency measures." IEEPA was passed to "enable short-term targeted responses to genuine, extraordinary threats" and isn't a tool for "addressing long-standing policy concerns or for implementing structural reforms that require legislative debate." Trump's tariffs here aren't "tied to a discrete or time-sensitive emergency," nor are they "temporary," the brief said, noting that they are "designed to remain in effect indefinitely and to respond to broad, persistent conditions."