Argument Preview - Trump v. V.O.S. Selections, Inc.

Tomorrow the Supreme Court will hear oral arguments in Trump v. V.O.S. Selections. In this case, which was consolidated with another case decided by the D.C. Circuit, President Trump is appealing the Federal Circuit’s conclusion that the International Emergency Economic Powers Act’s grant of presidential authority to “regulate” imports does not authorize the tariffs he imposed. This is our argument preview.

In this case, the Supreme Court granted review to consider the following questions:

1. “Whether the International Emergency Economic Powers Act (IEEPA), Pub. L. No. 95-223, Tit. II, 91 Stat. 1626, authorizes the tariffs imposed by President Trump pursuant to the national emergencies declared or continued in Proclamation 10,886 and Executive Orders 14,157, 14,193, 14,194, 14,195, and 14,257, as amended.”
2. “If IEEPA authorizes the tariffs, whether the statute unconstitutionally delegates legislative authority to the President.”

The Trump Administration’s opening brief argues President Trump lawfully imposed the tariffs under IEEPA “in his exercise of power over the military and foreign affairs” because he determined they “are necessary to rectify America’s country-killing trade deficits and to stem the flood of fentanyl and other lethal drugs across our borders.” According to the government, “President Trump’s IEEPA tariffs are plainly lawful.” It maintains “Congress has long granted the President broad authority to employ tariffs to address emergencies.” IEEPA, it says, “continues that tradition by expressly authorizing the President to ‘regulate . . . importation’ of foreign goods to address declared national emergencies.” The Administration suggests that, “[s]ince the early days of the Republic, ‘regulating’ trade has always encompassed the imposition of tariffs, and IEEPA’s broader statutory scheme confirms that ‘regulat[ing] importation’ includes the use of tariffs.” According to the Administration, “IEEPA addresses emergencies whether or not they involve trade deficits, and Section 122 [of the Trade Act of 1974] addresses trade deficits whether or not they involve declared emergencies.” Lastly, the Administration suggests, the Federal Circuit’s “limitations” on the President’s authority “are in direct violation of the separation of powers.” Indeed, it argues, “the President’s foreign-policy authority includes ‘all that he possesses in his own right plus all that Congress can delegate,’ and his actions are ‘supported by the strongest of presumptions and the widest latitude of judicial interpretation.'” 

Learning Resources filed a brief arguing IEEPA “does not give the President any taxing or tariffing power.” According to the brief, the Supreme Court “should not lightly assume that Congress abdicated its core taxing power to permit the President to tax Americans with virtually no limits.” Moreover, Learning Resources argues, “the President has no ‘inherent’ taxing authority—even in times of national emergency.” Learning Resources contends “the Government cannot find a single other example where Congress delegated taxing authority through the word ‘regulate.’” According to Learning Resources, the Supreme Court “should hold that IEEPA tariffs are unlawful.”

V.O.S. Selections also filed a brief contending “[t]he President has no independent constitutional authority to impose tariffs.” According to V.O.S. Selections, IEEPA “never mentions tariffs, and in 50 years no other president has used it for that purpose.” It argues the term “regulate” in IEEPA “does not ordinarily mean ‘tax.’” Furthermore, V.O.S. contends, “the Framers, [who] were well aware that tariffs had foreign policy implications, still vested the power in Congress.” V.O.S. Selections also suggests “IEEPA contains no clear grant of tariff powers.” It argues that, “if IEEPA were interpreted to convey such boundless authority to tax the American people, it would constitute the most plainly unconstitutional delegation of legislative power in a century.”

The State Respondents filed a brief arguing that “[t]he Framers assigned the tariff power to Congress, not the President.” According to the State Respondents, moreover, when “Congress has delegated authority to the President to adjust tariff rates . . . it always has done so explicitly and subject to intelligible principles that cabin the President’s authority.” Furthermore, they claim, “[c]ontext, history, and common sense all support a more modest understanding of that provision—one that leaves the President ample tools to address emergencies but does not delegate Congress’s tariffing power wholesale.” The State Respondents conclude that “Congress, not the President, decides whether and how much to tax Americans who import goods from abroad.”

Forty three amicus briefs were filed in this case. Six favor the Trump Administration:

1. The American Center for Law and Justice filed an amicus brief arguing “Congress crafted IEEPA with sweeping language, authorizing the President to ‘investigate, regulate, or prohibit’ international economic activities during declared emergencies.” The American Center for Law and Justice contends “[t]his broad delegation reflects Congress’s recognition that international economic crises require rapid, coordinated responses that only unified executive action can provide.”
2. Professor Chad Squitieri filed an amicus brief arguing “Congress can . . . delegate tariff power by delegating commerce-regulation power.” The Professor contends “both lower courts concluded that tariffs must be an exercise of taxation power,” but those “courts were mistaken.”
3. U.S. Representatives Darrell Issa and Brian Mast, America First Legal Foundation, and Coalition for a Prosperous America filed an amicus brief arguing IEEPA “authorizes the President to (among other things) ‘regulate . . . importation . . . of . . . any property’ under specified conditions.” They contend the “particular use of tariffs here [does not] violate—or require narrowing by—the major-questions or nondelegation doctrines.” Furthermore, they say, “the Court lacks authority to second-guess the President’s determinations under IEEPA.”
4. America’s Future filed an amicus brief contending “that at least three other tariff laws . . . expressly grant the President” the relevant “power, and they are not deemed objectionable.” America’s Future suggests that, when “those laws have been challenged, the courts have been properly deferential to the President’s exercise of expressly delegated tariff authority.” It maintains, moreover, that “President Trump was elected to end th[e] policy that rewards the few at the expense of the many, and his use of his power to set tariffs under IEEPA is perhaps his most important tool.”
5. Jill Homan filed an amicus brief arguing that, “[o]n its face, the power to ‘regulate importation’ includes the power to impose tariffs because tariffs have been used throughout American history as a common tool for regulating commerce.” Homan contends that, “[b]ecause tariffs and taxes are different policy tools, it does not matter that IEEPA—and the Constitution—do not give the president the explicit power to levy ‘taxes.'” Homan suggests the “power to ‘regulate importation’ is distinct from taxing authority generally, and its plain meaning, and meaning as interpreted among its neighboring terms, includes the power to levy tariffs on goods that are imported.”
6. The America First Policy Institute filed an amicus brief arguing “the single most relevant federal statute was not considered at all.” According to the Institute, “Section 338 of the Tariff Act of 1930 confers directly on the President the power to impose tariffs on any country in any amount up to 50%.” The Institute says that, “[u]nder Section 338,” the Court “should either uphold the challenged tariffs or, at a minimum, vacate and remand for further review below.”

Thirty six amicus briefs were filed supporting the Federal Circuit’s decision:

1. Consumer Watchdog filed an amicus brief explaining that it “agrees with the courts below that the President lacks the statutory authority to impose the tariffs.” Consumer Watchdog argues that, “[e]ven if the President had the authority to issue tariffs under [IEEPA] . . . these tariffs would still be invalid.” Consumer Watchdog argues “IEEPA would violate the constitutional prohibition in Article I on Congress delegating legislative authority to the Executive Branch.”
2. Corey J. Biazzo filed an amicus brief contending that, while IEEPA and the NEA “may delegate some of Congress’ Article I authority to the President, the IEEPA and NEA do not delegate unbounded unilateral tariff authority to the President.” Biazzo argues “IEEPA and the NEA do not delegate a tariff-promulgating power to the President.” Biazzo suggests there “is no clear authorization for the implementation of a wide spread tariffing regime under the IEEPA and the NEA.”
3. Crutchfield filed an amicus brief arguing the assertion that “IEEPA grants the President unilateral and unreviewable authority to impose, increase, decrease, suspend, or alter tariffs on imports from virtually every country in the world cannot be derived from the plain language of the IEEPA or the U.S. Constitution.”
4. George F. Allen and other constitutional scholars filed an amicus brief arguing “[t]he Constitution assigns tariff authority to Congress, not the President.” Furthermore, they contend, “foreign-affairs labels cannot expand executive power.” The scholars suggest the Supreme Court “reaffirm the basic principle that Congress, not the President, holds the power to tax and to make major trade policy . . . [and that] [e]mergencies do not erase that principle.”
5. Professors of U.S. Relations Law filed an amicus brief arguing IEEPA “does not authorize the President to impose tariffs on the importation of goods to the United States.” According to the professors, the “principles of noscitur a sociis and ejusdem generis, as well as the major questions doctrine, oppose reading a tariff authority into IEEPA.” The professors argue the Court “should not endorse an unfounded and nearly limitless interpretation of ‘regulate’ in IEEPA to satisfy a need that existing trade law already meets.”
6. Vikram David Amar filed an amicus brief contending “IEEPA’s text and history show that it was enacted to rein in presidential overreach and limit the President’s power to adjust tariffs.” Amar argues that “a fair but not unduly broad reading of the IEEPA plainly shows that Congress did not delegate to the President the power to unilaterally impose and adjust foreign tariffs.”
7. The Institute for Policy Integrity at New York University School of Law filed an amicus brief arguing the “President’s reliance” on IEEPA “to impose the tariffs at issue here meets these [major question doctrine] requirements.” The Institute argues “if this case does not call for applying the doctrine, it is unclear what would.”
8. BRB Management, LLC filed an amicus brief contending “Section 1702(a)(1)(B) of IEEPA cannot authorize tariffs.” According to BRB Management, IEEPA’s “authority applies only to property in which a foreign country or foreign national has an interest, and most imported property has no such foreign interest at the time tariffs attach.”
9. Professional Economists filed an amicus brief arguing the tariffs’ “impact on government revenue alone is one or two orders of magnitude greater than that of programs that this Court has already determined triggered the ‘major questions doctrine.” According to the economists, when the major question doctrine is triggered, “explicit Congressional authorization is required to impose programs of significant economic impact.”
10. Peter W. Sage filed an amicus brief contending IEEPA “does not explicitly authorize the imposition of tariffs, particularly not the expansive authority claimed in this instance.”
11. Thirty one former federal judges filed an amicus brief saying that, “if this Court construes IEEPA as delegating to the President the unlimited power to set tariffs on all goods imported from all our trading partners, [the Judges] urge the court to find this to be an unconstitutional transfer of legislative power.”
12. Professors of Administrative Law filed an amicus brief contending that, “[a]lthough Congress may delegate some of its power to the President, it cannot delegate its responsibility to set the fundamental policy of the law.” The professors argue that, “[i]f the Court construes IEEPA to permit President Trump to impose the worldwide tariffs he set earlier this year, then it should rule that IEEPA transgresses constitutional constraints because Congress provided no intelligible principle for the exercise of that delegated tariff power.” According to the professors, “IEEPA violates this Court’s nondelegation doctrine.”
13. The Constitutional Accountability Center filed an amicus brief arguing IEEPA does not explicitly grant the President “authority to impose tariffs.” The Center suggests the “bifurcated statutory structure [between IEEPA and TWEA] and the deliberate narrowing of peacetime authorities demonstrate Congress’s plan to create a more constrained statute— undermining any inference that Congress silently included the extraordinary power to impose tariffs within IEEPA’s regulatory authorities.”
14. Former senior military, national security, and foreign policy government officials filed an amicus brief that does “not address whether IEEPA delegates the tariff power to the President, or whether, if so, the Constitution permits such a broad delegation.” The former government officials assert “only that when the President seeks to invoke emergency powers under the NEA and IEEPA, he must do so within the constraints imposed by Congress.” According to these former government officials, “the President’s invocations of the NEA and IEEPA do not meet the standards set by Congress, and the Court must strike down these actions as not in accordance with law.”
15. Professor Julian Arato joined by other professors filed an amicus brief arguing “the power to impose taxes on imports is an exclusively congressional prerogative governed by Article I of the Constitution.” The professors maintain the power to impose taxes on imports is” not a foreign affairs issue subject to or interpreted in light of Article II.” According to the professors, “history strongly suggest that [IEEPA] . . . does not mention tariffs or duties, [and] does not authorize them.”
16. We Pay the Tariffs filed an amicus brief contending that “[a]nything less than striking down the IEEPA Tariffs and ordering the prompt refund of all monies collected . . . would be catastrophic.”
17. The Brennan Center for Justice filed an amicus brief arguing “President Trump has declared an emergency where none exists, violating the cardinal principal behind the NEA’s enactment.” The Center contends “President Trump invoked IEEPA in the absence of an ‘unusual and extraordinary’ threat.” Moreover, the Center argues, “IEEPA should not be construed to authorize tariffs absent clear congressional intent to do so.” According to the Center, ” President Trump is bypassing an extensive legislative framework governing the president’s imposition of tariffs—a result that the NEA and IEEPA were intended to prevent.”
18. The American Watch Association filed an amicus brief “present the Court with just one case study” of what the Association says is “catastrophic harm caused by the President’s sweeping tariffs.”
19. The Goldwater Institute, Dallas Market Institute, and the John Locke Foundation filed an amicus brief arguing that, “[e]ven if there were an emergency, . . . IEEPA lacks any clear statement that it was intended to vest the President with the power to impose taxes.” The brief argues “IEEPA         also fails the ‘intelligible principle’ test because it contains no guidelines limiting executive power, unlike other tariff statutes.”
20. Princess Awesome, LLC filed an amicus brief contending “IEEPA unconstitutionally delegates Congress’s tariff and foreign-commerce regulation powers to the President.” According to Princess Awesome, the Supreme Court should hold “such actions were taken pursuant to an unconstitutional transfer of Congress’s power.”
21. The State of California and Gavin Newsom filed an amicus brief arguing the “power to impose tariffs is so core to legislative authority that the Framers listed it first among Congress’s powers.” California and Newsom contend the “text and every other tool of statutory construction confirms that imposing tariffs is not one of the powers that Congress granted the President in IEEPA.”
22. The Chamber of Commerce of the United States and the Consumer Technology Association filed an amicus brief arguing IEEPA “lacks the language—and limits—that Congress has used in other statutes that expressly authorize the President to impose tariffs.” The Chamber of Commerce and Consumer Technology Association suggest that, if “Congress wanted to empower the President to unilaterally impose tariffs of virtually unlimited size, scope, and duration—a power to essentially reshape the entire U.S. economy—it would have said so.” According to the brief, “[t]he Administration’s claim that IEEPA touches on foreign affairs does not change the answer to this statutory question.”
23. The Cato Institute filed an amicus brief arguing the Supreme Court should “conclude that [IEEPA] prohibits the President from setting tariff rates.” The Institute contends “[t]he Constitution, IEEPA’s text, and over two centuries of consistent practice point in the same direction: the tariff power remains in the hands of Congress.”
24. Scott Lincicome and others filed an amicus brief contending the government’s “claims are groundless and should be ignored.” 
25. Advancing American Freedom submitted an amicus brief arguing that, if “IEEPA’s language did grant to the President the power over tariffs he has claimed, it would violate the nondelegation doctrine.” According to Advancing American Freedom, “IEEPA does not contain an intelligible principle to guide either the President’s declaration of an emergency or his implementation of tariffs.”
26. National Security Officials filed an amicus brief arguing “there is no evidence at all that Congress intended IEEPA to encompass such a massive delegation of its Article I powers.” The National Security officials contend “the authority to ‘regulate’ does not encompass taxation.”
27. Tax law professors filed an amicus brief contending “[t]ariffs are national and legislative—and thus to be determined by a representative Congress.” According to the tax law professors, “[t]he Framers’” placed “control over import duties in the hands of a representative Congress.” The tax law professors maintain that “[a]ttaching a “foreign affairs” label to the tariffs at issue here makes no difference.”
28. The National Taxpayers Union Foundation filed an amicus brief suggesting the tariffs represent a “major policy change” that “largely happened not by a law passed by Congress, nor by the mechanisms prescribed by Congress in the Trade Act of 1974.”
29. The American College of Tax Counsel filed an amicus brief arguing “IEEPA is not a revenue-raising statute, and its delegation of authority to the Executive cannot be read to permit the President to raise billions or trillions of dollars by unilaterally imposing Reciprocal Tariffs.” The American College of Tax Counsel suggests “this case can be resolved as a matter of statutory interpretation” and “urge[s] the Court to expressly avoid addressing any non-delegation or major questions doctrine issues.”
30. Former government officials and legal scholars filed an amicus brief arguing neither “the Constitution nor the statutes on which the government relies authorize the president to seize unilateral control of the world economy through levying tariffs to address decades-long trade imbalances.” The former government officials maintain the lower courts “correctly held that IEEPA does not authorize the president to levy the reciprocal tariffs.”
31. Ambassador Carla A. Hills and Ambassador Alan Wm. Wolff filed an amicus brief arguing that, “prior to President  Trump’s Executive Order  . . . no president has ever invoked sanctions authority such as conferred by IEEPA to impose tariffs for the purpose of remedying trade deficits or otherwise protecting domestic industry from foreign competition.” According to the Ambassadors, “President Trump has radically departed from a systematic, unbroken legal tradition governing trade law.” The Ambassadors contend the “government’s reading of IEEPA’s ambiguous language is radically at odds with how every branch of the federal government, executive, judicial, and legislative, has understood presidential power over tariffs.”
32. Members of the United States Congress filed an amicus brief contending the “Federal Circuit, Court of International Trade, and District Court for the District of Columbia all reached the same correct conclusion: the President’s imposition of tariffs under IEEPA is unlawful.” The members of Congress argue IEEPA “does not confer the power to impose or remove tariffs.” According to the members of Congress, “IEEPA’s delegated power to ‘regulate’ is not a power to impose tariffs.”
33. Emily Ley Paper, Inc. filed an amicus brief arguing the President’s “Executive Orders have upended the tariff system that Congress designed and enacted over a course of decades.” Emily Ley Paper contends the “President lacks the inherent authority to raise tariffs unilaterally, and IEEPA does not give it to him.”
34. Scholars of the History of Constitutional Law and the Presidency filed an amicus brief contending “[t]ariff authority has rested squarely with the legislative branch since the nation’s founding.” The Scholars argue “the major questions doctrine applies to the President’s claim of unilateral and limitless tariff authority under IEEPA.” And, according to the Scholars, “[t]he President has far exceeded the confines of his tariff authority in IEEPA, and respect for Congress requires that the tariffs at issue be struck down.”
35. Trade Scholars in Economics, Politics, and Law filed an amicus brief arguing “Section 122 of the Trade Act of 1974 (‘Section 122’) governs President Donald Trump’s trade deficit tariffs.” The Scholars contend that, by “passing IEEPA shortly after Section 122, Congress created a statutory framework restricting the president’s trade deficit tariff authority to Section 122 while providing other non-tax emergency powers under IEEPA.”
36. Washington State filed an amicus brief arguing “IEEPA’s grant of presidential authority to ‘regulate’ imports cannot be read to authorize the varying tariffs imposed by President Trump’s Executive Orders, or any imposition of tariffs by a President at all.”

One amicus brief, filed by Professor Aditya Bamzai, did not support either party. Professor Bamzai argues that, in “other contexts, this Court has understood the term ‘regulate’ to include the authority to impose taxes.” According to Bamzai, “the use of a ‘tax’ or ‘fee’ was an appropriate method to regulate trade with the enemy under the classic laws of war.” Bamzai suggests “the use of such a ‘tax’ or ‘fee’ remains an appropriate method by which the executive branch may ‘regulate . . . importation’ under the IEEPA today.”

Oral arguments are set for tomorrow, Wednesday, November 5. We will report on the arguments and any other developments.