This Thursday the Federal Circuit will hear oral argument in V.O.S. Selections, Inc. v. Trump, a case involving challenges to the legality of President Trump’s tariffs under the International Emergency Economic Powers Act. We have been monitoring it both because it is being considered en banc and because it attracted numerous amicus briefs. This is our argument preview.
In its opening brief, the government argued that the IEEPA’s “text and history, as well as governing precedent, all confirm that the statute clearly authorizes the President to impose tariffs to address declared emergencies.” The government maintained that the Court of International Trade “properly did not question whether IEEPA authorizes tariffs as a general matter.” The government also claimed that, while “the CIT . . . invoked the major-questions doctrine, . . . that doctrine . . . provides no support for the CIT’s interpretation.” The government argued “the CIT’s view that Section 122 of the Trade Act of 1974 precludes the imposition of tariffs under IEEPA . . . is . . . unfounded.” It further argued that “the CIT erred in entering a sweeping universal injunction” because “the CIT entirely failed to consider the four-factor test the Supreme Court has established for permanent injunctive relief.” In the end, the government asked the Federal Circuit to reverse the CIT’s judgment. The government also asked the Federal Circuit to “extend its stay through the issuance of its mandate” if it affirmed the CIT’s judgment, so the government could seek relief from the Supreme Court.
Plaintiffs-Appellees V.O.S. Selections, Inc., Plastic Services and Products, LLC, DBA Genova Pipe, Microkits, LLC, FishUSA, Inc., and Terry Precision Cycling, LLC filed a response brief arguing that, “under the familiar framework of Youngstown Sheet & Tube Co. v. Sawyer, the President may exercise executive power over U.S. persons and property only if given authority by ‘an act of Congress’ or ‘the Constitution itself.’” According to V.O.S. Selections, “[n]either grants him that authority here.”
In its reply brief, the goverment argued “the President’s actions are consistent with IEEPA’s text and precedents” of the Federal Circuit and the Supreme Court. It maintained “Plaintiffs’ attempts to defend the CIT’s actual reasoning—that ‘regulate . . . importation’ authorizes only some tariffs— . . . fail” because Section 122 of the Trade Act of 1974 “cannot be read to narrow the President’s IEEPA authority.” The government also contended “the major-questions and nondelegation doctrines [do not] aid plaintiffs.” The brief suggested “Congress routinely delegates tariff authority to the President to augment his inherent powers over foreign affairs and national security, and the Supreme Court has recognized that broad delegations in that sphere are the norm.” Finally, the government argued, “plaintiffs cannot sustain the CIT’s entry of a universal injunction” due to “the Supreme Court’s recent decision . . . establish[ing] that injunctive relief must be limited to the parties before the court.”
Twenty amicus briefs were filed in this case. Eighteen support V.O.S. Selections:
- Crutchfield Corporation filed a brief arguing “[t]he unprecedented assertion that the International Emergency Economic Powers Act of 1977 (IEEPA), 50 U.S.C. §§ 1701–1710, grants the President unilateral and unreviewable authority to impose, increase, decrease, suspend, or alter tariffs on virtually every country in the world cannot be reconciled with the plain language of the IEEPA and the U.S. Constitution.” Crutchfield maintained this interpretation could not survive “a straightforward textual analysis” and that it would also “violate the major questions doctrine and the non-delegation doctrine.”
- Consumer Watchdog filed a brief arguing that, if the IEEPA was read “as the President does,” it would require the Federal Circuit “to decide whether IEEPA would violate the prohibition against Congress delegating legislative power to the President.” Consumer Watchdog additionally contended that, because “there are no explicit or implied limits or guardrails in IEEPA that prevent the President from doing whatever he pleases with tariffs,” Congressional delegation of authority to impose tariffs “without limits or guardrails would violate the Constitution.”
- The Cato Institute filed a brief arguing “the Constitution vests the power to impose tariffs solely in Congress,” and that “the government’s reliance on IEEPA as a source of unilateral tariff authority breaks with this tradition and misreads the statute.”
- The Institute for Policy Integrity at New York University School of Law filed a brief arguing that, “[b]ecause the challenged action triggers the major questions doctrine, the government must identify ‘clear congressional authorization’ supporting it.” The Institute further contended that “the Government’s argument that the major questions doctrine does not apply to the President lacks support in the Supreme Court’s opinions.”
- Peter W. Sage filed a brief arguing that President Trump’s tariffs are “an escalation in the Executive’s determination to exert its will over coordinate branches of government.” He urged the Federal Circuit “to reaffirm the separation of powers and the foundational principle that the President is subject to the law.”
- Amici Curiae George F. Allen, Joshua A. Claybourn, John C. Danforth, Richard A. Epstein, Charles T. Hagel, Harold Hongju Koh, Gerard N. Magliocca, Michael B. Mukasey, Alan Sykes, John Daniel Tinder, Alexander Volokh, Peter Wallison, and Philip Zelikow filed a brief arguing the President “may not impose tariffs” unless Congress “has delegated that authority through a valid and clearly bounded framework.”
- Burlap & Barrel, Inc. filed a brief indicating President Trump’s tariffs have forced it “to pause spending on innovation and R&D,” which “impacts the company’s growth as well as the American economy.” It maintained that the tariffs “threaten to irreparably fracture Burlap & Barrel’s business relations with foreign vendors if they lead to reduced ordering or other downstream effects.”
- Princess Awesome, LLC; StoneMaier, LLC; 300 Below, Inc.; Up-Ward Glance, LLC and other corporations filed a brief indicating “President Trump arrogated Congress’s tariff power to himself and imposed steep new tariffs on goods imported from nearly every country in the world,” even though the IEEPA “says nothing about duties, imposts or tariffs” and “does not grant the President any tariff power.”
- Advancing American Freedom, Inc.; Frontline Policy Council; Independent Institute; Mountain States Policy Center; Rio Grande Foundation; and Paul Stam, former speaker Pro Tempore of the North Carolina House of Representatives, filed a brief arguing the powers asserted by President Trump when issuing “changes to tariff rates worldwide” are “not within the constitutional authority of the presidency.”
- The New Civil Liberties Alliance filed a brief arguing the Federal Circuit “should issue an even stronger opinion unreservedly holding that any tariffs imposed through [IEEPA] are unlawful, as it is not a statute that provides for tariffs.”
- Goldwater Institute and Dallas Market Center filed a brief arguing that, “[e]ven if [IEEPA] or other statutes cited in the challenged Executive Order authorize the ‘Liberation Day’ tariffs, that act is an unconstitutional delegation of taxing power that contradicts our constitutional order’s most basic principles.”
- A brief filed by 191 members of the United States Congress argued that President Trump “has usurped Congress’s constitutional authority by impermissibly using the International Emergency Economic Powers Act (‘IEEPA’) to impose tariffs.”
- Vikram David Amar and Mickey Edwards filed a brief arguing IEEPA “does not authorize the President to impose ‘unbounded tariffs’ or to use tariffs as ‘leverage’ to obtain unrelated policy goals.” The brief contended that “IEEPA’s text and history show that it was enacted to rein in presidential overreach and limit the President’s power to adjust tariffs.”
- Former Government Officials and Legal Scholars filed a brief arguing that IEEPA “does not authorize the president to impose the worldwide and ‘reciprocal’ tariffs because trade imbalances are not an ‘unusual and extraordinary threat.’”
- The Chamber of Commerce and the Consumer Technology Association filed a brief arguing IEEPA “does not authorize” President Trump’s “sweeping tariffs,” and that the statute “does not even mention ‘tariffs’ or any other type of ‘duty.’”
- Various economists filed a brief arguing that, “[e]ven assuming that IEEPA permits the issuance of tariffs—an authority that is not clear from IEEPA’s plain language—IEEPA has certain requirements that must be met before the President can invoke its authority.”
- The Protect Democracy Project filed a brief arguing President Trump’s “challenged tariffs are both unlawful and reviewable.” The brief contended that “Congress did not intend emergency declarations pursuant to IEEPA to allow end-runs around the standard law-making process or as a means to implement long-term policy goals.”
- The Brennan Center for Justice at NYU School of Law filed a brief arguing “the president’s emergency declarations and invocations of IEEPA for the purpose of imposing worldwide tariffs are contrary to the original purpose of both the NEA and IEEPA.”
Two amicus briefs support the government:
- The America First Policy Institute filed a brief arguing “the Tariff Act of 1930 does authorize these tariffs—expressly.” The Institute maintained that “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%.” As a result, the brief says, “President Trump’s worldwide and reciprocal tariffs—enjoined by the court below—fit Section 338 of the Tariff Act of 1930 like a glove.”
- The America First Legal Foundation and Coalition for a Prosperous America filed a brief arguing “[t]he International Emergency Economic Powers Act (IEEPA) authorizes the President to (among other things) ‘regulate . . . importation . . . of . . . any property’ under specified conditions.” The brief maintained “the [Federal Circuit] lacks authority to second-guess the President’s determinations under IEEPA.”
Oral argument is scheduled to be heard this Thursday, July 31 at 10:00 am. Due to anticipated public interest, the court will livestream audio of the proceedings on its YouTube channel.
We will report on the oral argument and any other developments.