Legal Scholars Led by Former Gov. George Allen File IEEPA Amicus Brief
In another amicus brief for V.O.S. Selections and Learning Resources, a number of legal scholars led by former Virginia governor George Allen opposed President Donald Trump’s International Emergency Economic Powers Act tariffs, citing IEEPA’s history and the major questions and nondelegation doctrines (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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If read as Trump argues, IEEPA “would give the President his own power of the purse,” they said.
The amici described themselves as “constitutional scholars, legal historians, public lawyers, a retired federal appellate judge, a former United States Attorney General, a former United States Trade Representative, and three former United States Senators united by a common conviction: the endurance of the American Republic depends not only on elections or policy outcomes, but on the faithful preservation of its constitutional structure.”
They said that the U.S. founders, in assigning the power to levy tariffs to Congress, intentionally treated tariffs like taxes -- as “taxation without representation was the grievance that sparked the Revolution.” That’s why only Congress has a general power over levying tariffs, they said.
Historically, American international trade policy developed along two paths, they said. On the one hand, Congress developed a “layered statutory framework” for trading with allies. On the other, it established a system of embargoes and sanctions to let it wield its economic power against enemies.
“For more than two centuries they coexisted without confusion, and neither Congress nor the White House imagined that a President could freely swap one for the other,” they said.
That two-pronged approach was challenged in 1971 when President Richard Nixon attempted to use the Trading With the Enemy Act to establish a broad import tariff, but it “proved resilient,” they said. Congress, disliking Nixon’s interpretation of the TWEA as granting him the tariff power, “carefully plugged the apparent gap” in the president’s authority to let him impose emergency sanctions with the Trade Act of 1974, then followed that up with the IEEPA.
While the IEEPA is more limited than the TWEA, Trump’s tariffs are more expansive than Nixon’s, they said.
The TWEA itself, a sanctions law, was never meant to provide tariff powers, they said. And when Congress drafted the IEEPA, the law was meant to further limit the executive’s power in that realm, they said; the law “deliberately” makes no mention of tariffs when it outlines and “carr[ies]” over the TWEA’s “classic sanctions tools.” This is especially evident because Congress had no need to pass legislation providing the president emergency economic powers, they said, having recently done so in the 1974 Trade Act.
“President [Jimmy] Carter’s own description of IEEPA at the time of signing confirms this understanding,” they said. “He emphasized that ‘[t]he bill is largely procedural. It places additional constraints on use of the President’s emergency economic powers in future national emergencies[.]’”
As others have, they also cited the major questions and nondelegation doctrines (see 2510200050) and 2510080045). If the IEEPA did provide the president the power to tariff, that would be “unprecedented,” requiring Congress to be clear and explicit, they said. And it would violate the Constitution’s establishment of Congress as the sole holder of the tax power.
George Allen was joined on the brief by Cato Institute legal scholar Joshua Claybourn; former U.S. senator from Missouri John Danforth; NYU constitutional law professor Richard Epstein; former Department of Defense secretary Charles Hagel; former State Department legal adviser Harold Hongju Koh; Indiana University constitutional law professor Gerard Magliocca; former U.S. Attorney General Michael Mukasey; Stanford Law international economic law professor Alan Sykes; former U.S. Court of Appeals for the 7th Circuit judge John Daniel Tinder; Emory University law professor Alexander Volokh; former White House counsel Peter Wallison; former State Department legal official Phillip Zelikow; and former U.S. trade representative Robert Zoellick.