More Pro-Tariff Amicus Briefs at SCOTUS Center on Section 338, Historic Wartime Tariff Powers
A total of seven amicus briefs were filed at the Supreme Court in defense of President Donald Trump's ability to impose tariffs under the International Emergency Economic Powers Act. One of the briefs, filed by the America First Policy Institute, urged the Supreme Court to sustain Trump's IEEPA tariff action under Section 338 of the Tariff Act of 1930, while another, penned by University of Virginia law professor Aditya Bamzai, detailed how wartime powers have historically included the power to tax and argued that IEEPA should be read to include these powers (Donald J. Trump v. V.O.S. Selections, U.S. 25-250) (Learning Resources v. Donald J. Trump, U.S. 24-1287).
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Four of the briefs, filed by members of Congress and conservative advocacy groups, defended the tariffs on textualist, constitutional or policy grounds (see 2509230053).
In its brief, the Trump-aligned America First Policy Institute told the high court the contested tariffs can be sustained under Section 338. This statute lets the president impose duties up to 50% whenever the president finds that "any foreign country places any burden or disadvantage" on U.S. commerce "directly or indirectly." The institute said this law is "fully operative today," though "rarely invoked," and all of the challenged tariffs, which include the reciprocal duties and tariffs on China, Canada and Mexico to combat fentanyl trafficking, "fit Section 338 like a glove."
The institute said the reason the lower courts didn't apply this statute is "understandable: the pertinent Executive Orders did not cite the Tariff Act of 1930." However, the executive orders used the president's powers under all "the laws of the United States," and the court can uphold an executive order "under a statute not specifically cited in the Order itself," the brief said. The institute added that the court "must" consider Section 338 before entering judgment.
The institute's brief was prepared by Yale Law School professor Jed Rubenfeld; Michael Jones, attorney at Ivey Barnum; and constitutional law professor Alan Dershowitz.
Meanwhile, Bamzai's amicus brief centered on the origins of the claimed power under IEEPA. Trump used IEEPA's grant of power letting the president "regulate ... importation" to impose the sweeping tariffs, arguing that "regulate" includes the power to tariff. The law professor first noted that the Supreme Court has interpreted the term "regulate" to include the power to tax in other contexts, citing the 1940 case McGoldrick v. Gulf Oil Corp. and the 1824 case Gibbons v. Ogden.
While these cases are relevant, the phrase "regulate ... importation" also must be read in conjunction with the "statutory backdrop against which the statute was adopted."
Prior to the Civil War, various politicians debated whether the authority to "prohibit commercial intercourse also included the authority to allow such trade, subject to conditions such as the imposition of a tax," Bamzai said. This question was seemingly settled in Cross v. Harrison, in which the high court upheld President James Polk's decision “to impose duties on imports” as military contributions “for the support of the government,” agreeing that it was in line with the “general principles in respect to war and peace between nations.”
During the Civil War, Congress passed a law letting the president declare "all commercial intercourse" with insurrectionist states or their citizens unlawful, unless the president permitted trading via licenses. The Supreme Court in Hamilton v. Dillin then sustained President Abraham Lincoln's use of this law to impose a "four-cent-per-pound fee on imports of cotton" as a proper expression of war powers.
Bamzai said the authors of the Trading With the Enemy Act, IEEPA's predecessor, "had these precedents in mind" when drafting TWEA during World War I. While TWEA didn't initially include the power to "regulate" imports, Congress later enacted a separate provision letting the president regulate imports. However, this provision, Section 11 of TWEA, expired after World War I.
Congress then made two crucial amendments to TWEA, first extending its application to a "period of national emergency," then inserting the reference to "importation and exportation" after the attack on Pearl Harbor. The law professor said that while Congress didn't fully explain the reasons for adding the term "importation" to TWEA, "the most plausible interpretation is that the addition sought to reintroduce the authority that had expired along with section 11 at the end of World War I."
Then, when Congress enacted IEEPA, "it limited various aspects of the President's authority," but, "notably," it didn't "change the operative language, 'regulate ... importation.'" Thus, "that language is best read to have the same meaning that it had when used in the TWEA before the passage of the IEEPA," which includes the power to impose tariffs, the brief said.
Lastly, an amicus brief was filed by Jill Homan, deputy director for Trade & Economic Policy at the America First Policy Institute. Homan's brief argues that the "explicitly broad powers granted by IEEPA include the power to impose tariffs" and the U.S. Court of Appeals for the Federal Circuit "erred in conflating a tariff with a tax and requiring that the word 'tax' appear in IEEPA."