Legion of Amicus Briefs Filed at SCOTUS to Contest IEEPA Tariffs

The briefs came in the lead cases on whether IEEPA can be used for tariffs, and, if so, whether Trump's reciprocal tariffs and tariffs on China, Canada and Mexico to combat fentanyl trafficking fall within that power. The parties challenging the tariffs argue that the text of IEEPA, which lets the president "regulate ... importation" of property in which a foreign party has an interest, doesn't confer tariff authority to the president (see 2510200050). In addition, the parties argued that the major questions and non-delegation doctrines guard against such a sweeping delegation of tariff authority, should the court find one in the statute.

The parties also argue that the reciprocal and fentanyl tariffs either don't address an "unusual and extraordinary" threat to the U.S. economy or don't properly "deal with" the declared threat (see 2510210033). The various amicus briefs supplement at least some element of these arguments.

For instance, a group of 31 former federal judges filed a brief to claim that the president's declarations of "national emergencies" are "subject to judicial review," contrary to the claims of the Trump administration. The Solicitor General argued in his brief that courts lack the power to decide whether the president's declared "unusual and extraordinary" threats were just that (see 2509220014).

In response, the former judges said that giving the president the "unreviewable authority to decide whether he may exercise emergency powers would be antithetical to the balance of powers that our founders established as the bedrock of the Constitution." Congress has passed various statutes giving the president "extraordinary power" in "times of true national emergency." This power can only be used "in the circumstances that Congress has authorized," and it's the "province of the judicial branch to determine whether the President has gone beyond what the law allows."

If the court rules that the president alone "can exercise unlimited legislative powers without judicial review of a determination that a national emergency exists," it "would give the President tyrannical powers," the judges said.

This argument was buttressed by a brief from the Goldwater Institute, Dallas Market Center and John Locke Foundation, which argued that there "simply is no emergency." The government's claim that the existence of an emergency is "not amenable to judicial review" is "plainly false" in light of a lengthy string of precedent both at the Supreme Court and in state courts reviewing emergency declarations, the brief said. "If it were otherwise," then the executive "would have an overwhelming incentive" to deem things "emergencies" to "bypass the normal lawmaking process," the brief said.

The amicus brief added that if Congress can act, it's not an emergency. The brief said "an emergency is an acute, as opposed to a chronic, condition," meaning that if Congress can convene to "deliberate over a course of action in accordance with constitutional procedures," it's "by definition not an emergency." From this claim, the brief said trade deficits and drug smuggling aren't emergencies.

Other briefs, such as the one filed by the Constitutional Accountability Center, centered on the history of wartime tariff power, whether that power existed and whether it was conferred to the president in IEEPA. One amicus, law professor Aditya Bamzai, argued that wartime powers have historically included the power to tax and that IEEPA should be read to include these powers (see 2509240056).

The Constitutional Accountability Center countered this claim by arguing that it "collapses under scrutiny." The brief said when IEEPA's predecessor, the Trading With the Enemy Act, was enacted in 1917, there was "fierce contestation" on the "existence or scope of an inherent presidential authority to impose tariffs during wartime." And even if TWEA codified a wartime tariff power, history "makes clear that" IEEPA doesn't confer that same power. "Congress's bifurcation of IEEPA from the TWEA reflects a deliberate severing of peacetime emergency powers from their war powers origins," the brief said.

Meanwhile, amicus BRB Management, centered on IEEPA's language noting that the president can only touch property in which a foreign party has an interest. The company said that "interest" must be a "real and present property interest," arguing that prior circuit court findings that IEEPA can touch property in which a foreign party has an "equitable" or "beneficial" interest does not help the government's case. With respect to many imports, there's neither an equitable nor beneficial interest. "It is simply past," the brief said.

The brief added that most imported property is "domestically owned with no real, present foreign interest when tariffs attach." At the point of entry, imported goods are "ordinarily owned by the American importer," the brief said.

A brief from the NYU School of Law's Institute for Policy Integrity focused on the role the major questions doctrine plays in the case. The doctrine guards against the executive claiming sweeping and newfound power from old statutes on issues of major political or economic significance. The institute said the cases are a good opportunity for the high court to "resolve uncertainty in the lower courts over when the major questions doctrine applies." The doctrine clearly applies here, since all of the court's requirements for the doctrine, namely "history, breadth, and economic and political significance," are all present, the brief said.

Lower courts have applied the doctrine "haphazardly and far beyond the 'extraordinary' case," the brief said. The institute added that the court could also clear up whether the doctrine is a "linguistic or substantive canon" of statutory interpretation. While lower courts have expressed uncertainty on this point, the high court's precedents have established that the doctrine "operates as a linguistic canon, not a substantive clear-statement rule," the brief said.

The institute also said the court should "clarify that there are no carveouts to the major questions doctrine." In a recent concurrence, Justice Brett Kavanaugh suggested the doctrine doesn't apply to foreign affairs issues, since Congress intends to grant broad and flexible power to the president in this domain. In response, the brief said the executive isn't "free from the ordinary controls and checks of Congress merely because foreign affairs are at issue," adding that the high court's "major questions precedents frequently involve foreign affairs or invocations of emergency powers."

Other amicus briefs came from the State of California; most Democratic members of Congress; a group of former national security officials, including former CIA Director Gen. Michael Hayden; Peter Sage, an Oregon farmer; three groups of administrative, constitutional and trade law professors; a group of tax law professors; the Washington Legal Foundation; advocacy group We Pay the Tariffs; the Brennan Center for Justice; the American Watch Association and Jewelers Vigilance Committee; a group of board game importers; the Chamber of Commerce of the U.S. and the Consumer Technology Association; the Cato Institute; a group of three trade researchers; advocacy group Advancing American Freedom; the National Taxpayers Union Foundation; the American College of Tax Counsel; a group of former government officials and legal scholars; former trade officials Carla Anderson Hills and Alan Wolff; a group of small importers; and a group of national security officials from the Biden and Obama administrations, including former Director of National Intelligence Avril Haines, former Treasury Secretary Jacob Lew and former National Security Adviser Jake Sullivan.