IEEPA Unconstitutional If It Lets President Impose Tariffs, Amicus Curiae Says
Offering its thoughts as an amicus curiae to the Supreme Court’s International Emergency Economic Powers Act tariffs case, the nonprofit Consumer Watchdog said that if IEEPA does grant the executive the powers President Donald Trump claims, the law itself is unconstitutional under the nondelegation doctrine (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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“This Court has not struck down a statute on delegation grounds since 1935,” it said. “But it also has never encountered a law like IEEPA as applied to the imposition of tariffs.”
IEEPA, if it imposes tariffs, fails the requirement that a statute delegating congressional authority must contain an "intelligible" limiting principle, the nonprofit said. The Supreme Court itself determined that again, most recently in FCC v. Consumers’ Research, decided in June 2025, the nonprofit said.
In that case, the U.S. advocated that the intelligible principle doctrine on its own “is kind of mush,” it said. It agreed, saying the doctrine, on its own, “can always be met at a sufficiently high level of generality.”
So, in Consumers’ Research, the majority outlined three considerations in nondelegation cases, it said: “the scope of the power congressionally conferred”; the “boundaries [on the] delegated authority”; and whether or not “Congress has provided sufficient standards to enable both ‘the courts and the public [to] ascertain whether the agency’ has followed the law.” It observed that the three dissenting judges in Consumers’ Research accepted the three conditions. The Trump administration itself “supported” them, too, it noted.
First, it said, the scope of the law isn’t within the president’s constitutional authority. The tariffs aren’t based in the president’s Article II powers over foreign affairs, so this isn’t an instance in which he has been merely granted “broad” supplemental powers that would face a less strict nondelegation doctrine. The more relaxed version of the doctrine is only appropriate when the president has explicit constitutional authority or is exercising a power that belongs only to him, it said.
Second, the law doesn’t limit the president’s ability to impose tariffs in any way, it said.
IEEPA would let the president unilaterally impose tariffs without any investigation or other procedure, it said. The tariffs could be set at any amount, for any product or products -- including on products on which Congress has already established tariffs -- and for any amount of time.
The U.S. claims that the president is limited by the one-year national emergencies he declares under IEEPA, plus a few other constraints in the substance of the law, such as the prohibition against regulating “informational materials.” But while those restraints “may tell the President what he must do before he may impose a tariff,” they don’t actually say anything “about what he may and may not do thereafter,” the nonprofit said.
Even the U.S. Court of Appeals for the Federal Circuit dissent in V.O.S. Selections said that “procedural requirements, such as declaring a national emergency and complying with the requirements of keeping Congress informed,” weren’t enough, it said.
The nonprofit also cited a couple of statistics from the current reciprocal tariffs. The Trump administration has taken in nearly $90 billion in tariffs, it said. And the administration has issued 23 executive orders imposing tariffs since January, and those tariffs “have come on and come off, and rates fluctuated up and down, with ever changing rationales and exceptions, with no ties to any limits or conditions in IEEPA,” it said.
And, third, it said, the judicial system wouldn’t be able to monitor the president’s enforcement of IEEPA. The act doesn’t contain a provision allowing for judicial review; even if it did, “the courts would have nothing to review because there are no limits in the statute that a President could be found to have violated,” it said.
Again, the government itself said in Consumers’ Research that judicial review was “‘one of the most important’ parameters" when judging whether a law is barred by the nondelegation doctrine, the nonprofit said.
But in its arguments about IEEPA, the U.S. argument about judicial review is “rather different,” Consumer Watchdog said. The government stated directly that the tariffs “are not amenable to judicial review,” it said. Rather, it said, “Congress and the political process” are expected to check the president’s power.
“[A]ssuming that the Government is correct that these determinations by the President are not subject to judicial review, that is a near fatal blow to its effort to save IEEPA from a nondelegation challenge,” it said.
In Consumers’ Research, the Trump administration also emphasized that these three considerations are especially crucial when the executive seeks money from its taxpayers, the nonprofit said: The government stated directly in its reply brief that “Congress may not vest federal agencies with an unbounded taxing power.”
And the three dissenters in Consumers’ Research, Justices Neil Gorsuch, Clarence Thomas and Samuel Alito, “would draw a firm line under which a law imposing a tax would violate the nondelegation doctrine unless it ‘prescribed the tax rate’ or ‘instead opted to cap the total sum the Executive may collect,’” it noted.