Advocacy Groups Defend Trump's IEEPA Tariffs at SCOTUS

The four briefs were filed by various conservative advocacy groups or individuals associated with these groups, including the American Center for Law and Justice, America's Future and the head of Catholic University's Separation of Powers Clinic.

One brief was filed by two members of Congress, Reps. Darrell Issa, R-Calif., and Brian Mast, R-Fla., along with the Trump-aligned America First Legal Foundation and the Coalition for a Prosperous America. This submission began with a textualist analysis of whether IEEPA, which lets the president "regulate ... importation," confers tariff authority to the president.

The brief argued that "regulate" in the context of "foreign commerce is a longstanding term with a settled meaning that includes the authority to levy financial charges." The Constitution's grant of power to Congress to "regulate Commerce with foreign Nations" has long been construed by the Supreme Court to include the authority to impose "charges on imports," the amici said. The brief cited two Supreme Court cases for that proposition: Groves v. Slaughter and Bd. of Trs. of Univ. of Illinois v. U.S.

The amici said both of these cases said the "laying of duties is 'a common means of executing the power'" to regulate foreign commerce. While the Constitution's taxing power also includes the power to "lay duties," the amici said it "does not follow that duties may not be imposed in the exercise of the power to regulate commerce."

The brief from the Separation of Powers Clinic emphasized this point, arguing that "overwhelming originalist evidence establishes that tariffs can be an exercise of either taxation or commerce-regulation power." The brief said "Congress can instead delegate tariff power by delegating commerce-regulation power," adding that the lower courts erred in conflating these powers. This understanding of the commerce regulation power "is reflected in the writings of James Madison, Chief Justice John Marshall, Joseph Story, and ordinary Americans such as the revolutionary pamphleteers," the brief said.

The Issa-led brief also highlighted the history of IEEPA and its relationship with Yoshida International v. U.S. In Yoshida, the U.S. Court of Appeals for the Federal Circuit's predecessor court upheld President Richard Nixon's duty surcharge under the Trading With the Enemy Act, which used the same operative language as IEEPA. Congress then passed IEEPA after Yoshida was decided, indicating congressional adoption of the president's tariff power under the phrase "regulate ... importation," the brief said. The U.S. made a similar point in its opening brief before the court (see 2509220014).

The amici added that IEEPA's tariff authority doesn't violate the nondelegation doctrine nor the major questions doctrine, which says the executive branch can only delegate on issues of major economic or political significance upon explicit delegation from Congress. The brief said there's "good reason to doubt" that the motivations underlying the major questions were meant to apply to actions taken by the president, since he's a "branch of government unto himself, rather than an unelected agency bureaucrat." The amici also emphasized the unique role of Congress in invaliding emergencies declared by the president, precluding judicial review under this doctrine.

The nondelegation and major questions doctrines also don't apply, since they would be applied here to the president's foreign affairs power, many of the amici argued. Many of the briefs filed embraced a recent concurrence penned by Justice Brett Kavanaugh, which said there's reason to doubt the major questions doctrine applies in the foreign affairs context. The amici led by Rep. Issa also invoked a concurrence from Justice Clarence Thomas explaining that delegations of power concerning tariffs "'arguably did not involve an exercise of core legislative power' and thus would not necessarily trigger the same nondelegation scrutiny as something like domestic taxation."

The Issa-led amici also supplemented the government's claim regarding which district court properly had jurisdiction in the cases, arguing that the Court of International Trade was the proper court to hear the disputes. However, amici offered a separate basis for finding that CIT had exclusive jurisdiction.

The trade court has exclusive jurisdiction to hear cases arising out of U.S. laws providing for tariffs. The amici said the case "arises out of IEEPA, which authorizes embargoes for reasons other than public safety," triggering one of CIT's "mandatory jurisdictional triggers." It doesn't matter whether this case involves embargoes. The mere fact IEEPA provides for such an action is enough to get this case in the trade court, the brief said.

The brief from America's Future took a different approach, characterizing the challenger's position as "hyper-technical" and instead defending the tariffs on policy grounds. The amicus said the plaintiffs include a few small businesses that are "heavily reliant on imports" and various U.S. states, though the court "cannot ignore the reality that the low tariff policies which Plaintiffs wish be continued also harm an untold number of Americans."

America's Future added that "if there actually was a presidential usurpation of a power that the Congress never delegated," one would expect Congress to step in, "but it has not." The amicus also said Trump was elected to end the nation's decadeslong free trade policy "that rewards the few at the expense of the many," adding that "his use of his power to set tariffs under IEEPA is perhaps his most important tool."