{"id":7123,"date":"2025-11-04T16:27:22","date_gmt":"2025-11-04T16:27:22","guid":{"rendered":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/2025\/11\/04\/the-other-arguments-in-trumps-tariffs-case-scotusblog\/"},"modified":"2025-11-04T16:27:22","modified_gmt":"2025-11-04T16:27:22","slug":"the-other-arguments-in-trumps-tariffs-case-scotusblog","status":"publish","type":"post","link":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/2025\/11\/04\/the-other-arguments-in-trumps-tariffs-case-scotusblog\/","title":{"rendered":"The other arguments in Trump\u2019s tariffs case – SCOTUSblog"},"content":{"rendered":"
\n

When the Supreme Court hears oral arguments on Wednesday in the\u00a0challenges<\/a>\u00a0to the tariffs that President Donald Trump imposed under the International Emergency Economic Powers Act in a series of executive orders earlier this year, they will hear from three different lawyers representing small businesses, a group of 12 states, and \u2013 defending the tariffs \u2013 the Trump administration. But when they vote on the case, the justices will also have considered 44 \u201cfriend of the court\u201d briefs, filed on behalf of members of Congress, trade experts, legal scholars, think tanks founded by former Vice President Mike Pence and presidential adviser Stephen Miller, the watch industry, and a vineyard owner. The briefs cover a wide range of topics, ranging from the impact of the tariffs to the history of trade law. And the proponents of the tariffs are overwhelmingly outnumbered by their opponents.\u00a0<\/p>\n

Below, I highlight several arguments from a selection of these briefs.\u00a0<\/p>\n

Certain briefs concentrate on the text of IEEPA<\/strong>.<\/p>\n

A brief<\/a> on behalf of a group of 207 members of Congress\u00a0(including Republican Sen. Lisa Murkowski of Alaska) tells the justices that IEEPA does not give the president the power to impose the tariffs. The Trump administration\u2019s \u201cinterpretation of IEEPA,\u201d they say, \u201cwould effectively nullify the guardrails set forth in every statute in which Congress expressly granted the President limited tariff authority\u2014a result Congress did not intend.\u201d\u00a0<\/p>\n

A\u00a0brief<\/a>\u00a0from\u00a0Jill Homan<\/a>, the deputy director of the America First Policy Institute, a nonprofit conservative think tank,\u00a0argues\u00a0the opposite: that IEEPA gives the president power to impose tariffs. Specifically, Homan contends that Congress\u2019 grant to the president in IEEPA the power to \u201cregulate \u2026 importation\u201d \u201cincludes the power to impose tariffs because tariffs have been used throughout American history as a common tool for regulating commerce, and they have been imposed specifically on imported goods.\u201d But in any event, she continues, the Supreme Court should interpret the phrase \u201cregulate \u2026 importation\u201d expansively in light of the larger context of IEEPA, which \u201cinclude[s] broad, sweeping powers.\u201d\u00a0<\/p>\n

A brief<\/a> from BRB Management, which describes itself as \u201ca small business that operates retail stores directly affected by tariffs and related trade policies,\u201d\u00a0focuses on a different part\u00a0of IEEPA: its grant of authority only to \u201cregulate \u2026 importation\u201d of \u201cany property in which any foreign country or a national thereof has any interest.\u201d The company contends that at the point where tariffs are imposed on goods, they generally are owned by U.S. buyers \u2013 and therefore are not owned by foreign countries or foreign citizens.\u00a0<\/p>\n

Other briefs focus on different laws that, they say, could justify the tariffs<\/strong>.\u00a0<\/p>\n

America First Policy Institute<\/a>, which describes itself as \u201ca non-profit, non-partisan research institute\u201d dedicated to putting \u201cthe American people first,\u201d\u00a0tells<\/a> the justices\u00a0that the president has the power under a different law \u2013 the Tariff Act of 1930 \u2013 to impose the tariffs at the center of this case. Section 338 of that law, the group explains, gives the president the power to impose tariffs of up to 50% if he determines \u201cthat any foreign country places any burden or disadvantage\u201d on U.S. commerce \u201cdirectly or indirectly, by law or administrative regulation or practice, by or in respect to any customs, \u2026 charge, exaction, classification, regulation, condition, restriction, or prohibition.\u201d And it doesn\u2019t matter, the group says, that Trump did not rely on this provision in his executive orders imposing the tariffs.\u00a0<\/p>\n

Erica Hashimoto<\/a>, the director of the Georgetown University Law Center\u2019s Appellate Litigation Clinic, filed a brief<\/a>\u00a0on behalf of a group of trade scholars arguing that a different trade law \u2013 Section 122 of the Trade Act of 1974 \u2013 applies to the tariffs at issue in this case. Congress passed that law (and not IEEPA) to give the power the president to deal with trade deficits, the brief says. Therefore, the brief contends, Trump must comply with the restrictions that the Trade Act imposes, which limits tariffs to 15% and 150 days.\u00a0<\/p>\n

The history of U.S. trade law is at the center of many of the briefs filed with the court<\/strong>.\u00a0<\/p>\n

A brief<\/a>\u00a0on behalf of a group of former national and economic security officials argues that IEEPA does not give the president the power that he claims to impose these tariffs. Instead, the officials contend, \u201cIEEPA continued (but narrowed) the authority that its predecessor, the [Trading with the Enemy Act], granted the President to impose sanctions and embargoes,\u201d and presidents for almost 50 years have interpreted it as such. If the court upholds the tariffs, the officials say, it would \u201crisk[] undermining the ability of this President and future Presidents to use IEEPA, as Congress intended, to address foreign policy crises.\u201d\u00a0<\/p>\n

Carla Anderson Hills<\/a>, who served as the U.S. Trade Representative during the George H.W. Bush administration, and\u00a0Alan William Wolff<\/a>, an international trade lawyer who has served in senior roles in the federal government,\u00a0tell<\/a> the justices\u00a0that Trump\u2019s use of IEEPA \u201cas a means for correcting trade deficits conflicts with \u201cthe United States\u2019 systematic and unbroken practice of implementing trade laws since the ratification of the U.S. Constitution.\u201d Because it is not clear whether IEEPA gives the president the power to impose the tariffs, they argue, that practice should \u201ccarry substantial weight.\u201d Of note, Hills and Wolff are represented by\u00a0\u00a0Roderick M. Hills, Jr.<\/a>, a professor at New York University\u2019s law school and the son of Carla Anderson Hills.\u00a0\u00a0<\/p>\n

Aditya Bamzai<\/a>, a law professor at the University of Virginia Law School,\u00a0filed a brief<\/a>\u00a0in support of neither party in which he argues that Congress enacted the Trading with the Enemy Act, the predecessor to IEEPA, against a backdrop in which \u201cthe use of a \u2018tax\u2019 or \u2018fee\u2019 was an appropriate method to regulate trade with the enemy under the classic laws of war.\u201d And when Congress passed the International Emergency Economic Powers Act, the law on which Trump relied in imposing the tariffs, it included the same phrase \u2013 \u201cregulate \u2026 importation\u201d \u2013 found in IEEPA. Therefore, he writes, \u201cthat language is best read to have the same meaning that it had when used in the TWEA before the passage of the IEEPA.\u201d\u00a0<\/p>\n

The\u00a0Constitutional Accountability Center<\/a>, which describes itself in the brief as \u201ca think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution\u2019s text and history,\u201d\u00a0 contends<\/a>\u00a0that Congress\u2019 enactment of IEEPA \u201creflects a deliberate severing of peacetime emergency powers from their war powers origins,\u201d \u201cundermining any inference that Congress silently included the extraordinary power to impose tariffs within IEEPA\u2019s regulatory authorities.\u201d\u00a0<\/p>\n

A group of tax law professors argues that Congress, rather than the president, should determine tariffs. This conclusion, they say\u00a0in their brief<\/a>, is supported by early U.S. history. The Framers of the Constitution believed that duties on imports were likely to be an important source of revenue for the new country, and they designed the Constitution so that \u201cdivisive questions\u201d like \u201ctaxation and foreign imports\u201d \u201cwould be settled by a large, representative, and deliberative legislature\u2014not by a single Executive.\u201d\u00a0<\/p>\n

The\u00a0Cato Institute<\/a>, which describes itself in its brief as \u201ca nonpartisan public-policy research foundation \u2026 dedicated to advancing the principles of individual liberty, free markets, and limited government,\u201dpoints to history<\/a>\u00a0to argue that \u201cCongress knows how to give the President discretion\u2014within limits\u2014to modify tariff rates.\u201d Moreover, Cato contends, whatever the phrase \u201cregulate \u2026 importation\u201d might have meant in the context of the Trading With the Enemy Act, \u201cthe historical record and this Court\u2019s separation of powers precedents\u201d suggest that in IEEPA Congress did not intend to give the president the power to impose tariffs in peacetime.\u00a0<\/p>\n

Several briefs focus on whether the tariffs violate either the \u201cmajor questions\u201d doctrine \u2013 the idea that if Congress wants to give the executive branch the power to make decisions of vast economic or political significance, it must say so explicitly \u2013 or the nondelegation doctrine, the idea that Congress generally cannot delegate its lawmaking powers<\/strong>.\u00a0<\/p>\n

The state of California and Gov. Gavin Newsom\u00a0argue<\/a>\u00a0that nothing about the text, context, or history of IEEPA gives any sign that Congress intended to give the president the power to impose tariffs. This conclusion is also supported by the major questions doctrine, they say in their brief. \u201cThe notion that Congress delegated the power to impose unbounded, devastating tariffs that could completely restructure international relations through the phrase \u2018regulate . . .\u00a0\u00a0importation,\u2019 in the context of a list of seven other verbs and eleven other objects, cannot be squared with the major-questions doctrine (or any other interpretive principle).\u201d\u00a0<\/p>\n

A brief<\/a>\u00a0on behalf of 31 former federal judges appointed by both Republican and Democratic presidents argues first that if the president did have the power under IEEPA to impose the tariffs it would violate the nondelegation doctrine because the law does not provide the president with any standards to guide him. Moreover, the judges say, courts can review the president\u2019s determination that there is an \u201cunusual and extraordinary\u201d threat that triggers IEEPA. That, they contend, \u201cis a straightforward matter of statutory interpretation\u201d and \u201cthe type of determination that federal judges make every day.\u201d\u00a0<\/p>\n

A group of nonprofits and academics, led by\u00a0Advancing American Freedom<\/a>, a group founded by former Vice President Mike Pence,\u00a0tells<\/a> the justices\u00a0that if IEEPA does give the president the power to impose these tariffs, \u201cit would violate the nondelegation doctrine because \u2026\u00a0\u00a0IEEPA does not contain an intelligible principle to guide either the President\u2019s declaration of an emergency or his implementation of tariffs.\u201d\u00a0<\/p>\n

A brief<\/a>\u00a0in support of the Trump administration from the\u00a0American Center for Law and Justice<\/a>, which describes\u00a0itself as \u201can organization dedicated to the defense of constitutional liberties secured by law,\u201d emphasizes that, under the Constitution, the president has primary responsibility for foreign affairs. In IEEPA, the ACLJ writes, Congress gave the president broad emergency power, reflecting its \u201crecognition that international economic crises require rapid, coordinated responses that only unified executive action can provide.\u201d And the major questions doctrine does not apply in this case, the group says, because \u201cforeign affairs present fundamentally different considerations\u201d from the kinds of cases involving \u201cdomestic regulatory overreach by unelected administrators\u201d that the doctrine was designed to address.\u00a0<\/p>\n

Consumer Watchdog<\/a>, a group that describes itself as a \u201cnon-profit, non-partisan public interest organization dedicated to protecting consumers from economic harm,\u201d\u00a0argues<\/a> that\u00a0Trump\u2019s tariffs violate the nondelegation doctrine. Trump, the group says, contends \u201cthat IEEPA silently gives him\u201d \u201cimmense power.\u201d But the tariffs are not linked to \u201cany limits or conditions in IEEPA \u2013 and everything determined by the unfettered choices of the President.\u201d That, the group says, runs afoul of the requirement that, if Congress delegates its authority, it must provide an \u201cintelligible principle\u201d to guide the exercise of that authority.\u00a0<\/p>\n

Some briefs focus on, among other things,\u00a0where<\/em>\u00a0the challenges to the tariffs should be filed<\/strong>.\u00a0<\/p>\n

A brief<\/a>\u00a0supporting the Trump administration from two members of Congress \u2013 Reps. Darrell Issa and Brian Mast \u2013 as well as\u00a0America First Legal Foundation<\/a>, a nonprofit law firm co-founded by Stephen Miller, and the\u00a0Coalition for a Prosperous America<\/a>, which describes itself as \u201cthe only national non-profit organization representing exclusively domestic producers across many sectors and industries of the U.S. economy,\u201d argues that the court should issue its decision in the case brought by V.O.S. Selections, rather than Learning Resources. This is so, the brief argues, because IEEPA \u201cauthorizes embargoes for reasons other than public safety\u201d \u2013 which brings lawsuits arising out of IEEPA under the purview of the Court of International Trade.\u00a0<\/p>\n

A brief<\/a>\u00a0filed on behalf of several small businesses, led by Emily Ley Paper, that are challenging the tariffs in their own litigation, as well as the\u00a0New Civil Liberties Alliance<\/a>, argues that the text of IEEPA is clear, and it does not give the president the authority that he claims to impose tariffs. Because IEEPA does not address tariffs, the brief continues, the district court in Washington \u2013 rather than the Court of International Trade \u2013 has the power to hear the disputes over the tariffs.\u00a0\u00a0\u00a0<\/p>\n

Some briefs supporting the challengers touch on the effects (or lack thereof) of the court\u2019s decision<\/strong>.\u00a0<\/p>\n

The\u00a0U.S. Chamber of Commerce<\/a>\u00a0and the\u00a0Consumer Technology Association<\/a>\u00a0state<\/a>\u00a0that, as a result of the tariffs, \u201cbusinesses have been forced to raise prices, freeze hiring, and postpone investments\u201d; moreover, they add, \u201cfor all businesses and investors, the President\u2019s claimed authority to impose, modify, pause, and remove tariffs under IEEPA at the drop of a hat is resulting in chaos and uncertainty.\u201d Finally, they warn that if the court upholds the president\u2019s authority, future administrations \u201cwill have similarly expansive authority to impose worldwide tariffs based on their own objectives.\u201d\u00a0<\/p>\n

A\u00a0brief<\/a> on behalf of the National Taxpayers Union Foundation, which describes itself as \u201ca non-partisan research and educational organization dedicated to showing Americans how taxes, government spending, and regulations affect everyday life,\u201d focuses largely on the facts underlying the case and the effects of a ruling for the challengers. The group contends that \u201ctrade deficits are not a sudden or unexpected development, and are in fact a routine and ordinary event, the opposite of an emergency. The U.S. has run trade deficits continually for 49 years.\u201d Moreover, the group add, a ruling from the Supreme Court that strikes down the tariffs would not be \u201ccatastrophic,\u201d as the government has suggested, but would instead \u201csimply return us to the comparatively low level of tariffs that were in place at the start of the year.\u201d\u00a0<\/p>\n

A group\u00a0of government officials, legislators, labor unions, and businesses from Washington partly focus in their brief on the effects of the tariffs (as well as the uncertainty surrounding them) on the state. Among other things, they note<\/a>, \u201cWashington\u2019s economy is projected to suffer a net loss of\u00a0$8.1 billion<\/em>\u00a0in output sales between 2025 and 2029,\u201d and the state could lose as many as 32,000 jobs. \u201cShould the President\u2019s tariffs remain in place,\u201d they write, \u201cWashingtonians will see higher prices for food (16% higher cumulatively over two years); higher prices for clothes and shoes (around 7% in the next year); and higher prices for cars (a 20-25% rise for used cars over two years and a 6% rise for new cars).\u201d\u00a0<\/p>\n

A\u00a0brief<\/a>\u00a0from\u00a0the American Watch Association<\/a>, the U.S. trade association for the watch industry, tells the justices about the effects of the tariffs on the industry. It explains that \u201cwatchmaking is a globally integrated industry that depends upon longstanding specialty manufacturers abroad\u201d \u2013 and in particular, in Switzerland and Japan \u2013 \u201cfor essential watch components\u201d that cannot be obtained in the United States. As a result, the group says, the industry\u2019s costs have increased, and members of the trade association \u201care already being forced to lay off employees, close storefronts, or increase consumer prices.\u201d Moreover, they add, because of \u201cthe unusually high startup costs for precision manufacturing, there is no realistic prospect that the President\u2019s tariff program will spur the creation of new manufacturing jobs in the United States.\u201d\u00a0<\/p>\n

Several briefs address other arguments related to trade law and the president\u2019s power<\/strong>.\u00a0<\/p>\n

A brief<\/a> filed\u00a0on behalf of former federal judges, government officials, and members of Congress argues that when Congress wants to give the president the power to impose tariffs, it does so clearly. But in any event, the brief continues, the president cannot rely on IEEPA to impose tariffs to address trade deficits because \u201ctrade imbalances that have persisted every year since IEEPA was enacted in 1977 cannot count as an \u2018unusual and extraordinary threat.\u2019\u201d\u00a0<\/p>\n

A brief<\/a>\u00a0on behalf of 13 former U.S. military, national security, and foreign policy officials argues that federal courts can and should review whether the president has properly invoked the National Emergencies Act and IEEPA. And here, the officials contend, he has not done so: although Trump invoked \u201cthe alleged threats posed by the trade deficit and lack of international cooperation on opioid trafficking,\u201d \u201cthese are persistent, longstanding issues, not \u2018unusual and extraordinary\u2019 threats.\u201d\u00a0<\/p>\n

A brief<\/a>\u00a0on behalf of a wide-ranging group that includes constitutional scholars, legal historians, and former U.S. senators urges the court to \u201creaffirm the basic principle that Congress, not the President, holds the power to tax and to make major trade policy. Emergencies,\u201d the group writes, \u201cdo not erase that principle, and the government cannot through the back door smuggle tariff authority into a statute that deliberately does not authorize it by invoking \u2018foreign affairs\u2019 or imagining the power to \u2018regulate\u2019 as including the power to tax.\u201d\u00a0<\/p>\n

Law professor Vikram Amar<\/a>\u00a0and former member of Congress\u00a0Mickey Edwards<\/a>\u00a0argue<\/a> that when Congress delegates broad power to the president, it can be difficult for Congress to reclaim that power because the president can veto any legislation that Congress passes to do so. Courts should keep this in mind, Amar and Edwards contend, when determining whether \u2013 as in this case \u2013 a law delegates the kind of expansive powers that the president has claimed, and instead should read IEEPA narrowly. If the Supreme Court is wrong, they say, \u201cthere is a relatively easy fix: Congress can pass a new bill by simple majority and the President will almost certainly sign it into law.\u201d\u00a0\u00a0<\/p>\n

The\u00a0Brennan Center for Justice<\/a>, which describes itself as an \u201can independent, nonpartisan law and policy organization,\u201d\u00a0contends<\/a>\u00a0that the National Emergencies Act, a 1976 law that governs the president\u2019s exercise of emergency powers, and IEEPA were intended to limit the president\u2019s use of emergency powers. Trump\u2019s executive orders imposing the tariffs, the group says, are contrary to that intent.\u00a0<\/p>\n

A brief<\/a>\u00a0on behalf of the\u00a0Goldwater Institute<\/a>,\u00a0the Dallas Market Center<\/a>, and the\u00a0John Locke Foundation<\/a>\u00a0argues first that the Supreme Court \u201chas both the authority and the duty to determine independently whether there actually is an emergency\u201d that would trigger the president\u2019s powers under IEEPA. But there is no such emergency here, the brief says.\u00a0<\/p>\n

And a brief<\/a>\u00a0on behalf of Peter W. Sage, who is a retiree and the owner of a small Oregon vineyard, contends that \u201cinterpreting IEEPA to grant such unlimited power to impose taxes on the American public would represent the most evident unconstitutional transfer of legislative authority in his lifetime.\u201d Sage writes that he can best protect his interests if Congress, rather than the president, has authority over tariffs.\u00a0<\/p>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"

When the Supreme Court hears oral arguments on Wednesday in the\u00a0challenges\u00a0to the tariffs that President Donald Trump imposed under the International Emergency Economic Powers Act in a series of executive orders earlier this year, they will hear from three different lawyers representing small businesses, a group of 12 states, and \u2013 defending the tariffs \u2013 […]<\/p>\n","protected":false},"author":1,"featured_media":7124,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-7123","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/posts\/7123","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/comments?post=7123"}],"version-history":[{"count":0,"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/posts\/7123\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/media\/7124"}],"wp:attachment":[{"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/media?parent=7123"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/categories?post=7123"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/wpinitiate.com\/echo-test\/demo973e36f5\/wp-json\/wp\/v2\/tags?post=7123"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}