36 Senators, 171 Representatives File Amicus Brief in Tariff Cases at SCOTUS
A group of 36 senators and 171 representatives filed an amicus brief last week at the Supreme Court, challenging President Donald Trump's ability to impose tariffs under the International Emergency Economic Powers Act. All the signatories were members of the Democratic Party, save for Sen. Lisa Murkowski, R-Alaska (Donald J. Trump v. V.O.S. Selections, U.S. 25-250) (Learning Resources v. Donald J. Trump, U.S. 24-1287).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The brief was one of 35 filed at the high court to challenge Trump's ability to use the IEEPA to impose tariffs and to specifically contest the reciprocal tariffs and tariffs on China, Canada and Mexico meant to combat the flow of fentanyl (see 2510240037).
The brief, penned by Georgetown University Law Center scholars Jennifer Hillman and Peter Harrell and attorneys at The Norton Law Firm, argued that the IEEPA categorically doesn't confer a tariff-setting authority. The arguments echoed those made by the parties briefing the case on the merits, which include two groups of importers and 12 U.S. states (see 2510210033) and 2510200050), by claiming that when Congress delegates its tariff authority, "it does so explicitly and specifically."
The congressional members cited a host of tariff statutes to illustrate the point that Congress specifically uses words such as "tariff" and "duty" when conferring tariff authority to the president. Congress also generally limits delegations of tariff authority to "physical goods" from a single country, the brief said. On the other hand, the IEEPA lets the president regulate "any property in which any foreign country or a national thereof has any interest," and thus "extends to many forms of property that historically have never been subject to import tariffs, such as financial assets, real property, and intellectual property rights."
The brief added that when Congress delegates its tariff authority, "it imposes substantive limitations and procedural controls." The cases the U.S. relies on in claiming that the high court has long approved broad delegations of authority to regulate trade either don't involve tariffs at all or "involve only narrow tariff applications," the brief said. The cases involving limited tariff applications "required explicit delegation and compliance with congressional mandates, including investigations, fact-finding, product limitations, and rate caps," the members argued.
The members then moved to a textualist argument, claiming that the text of the IEEPA itself, which lets the president "regulate ... importation," doesn't confer tariff power. The brief said that if the IEEPA were found to authorize tariffs, the statute would nullify Section 122, which lets the president impose tariffs to address a "balance-of-payments" issue, and other provisions of the Trade Act of 1974. "For example, if a President could simply declare a national emergency and invoke IEEPA to impose tariffs in response to a perceived unfair practice by a U.S. trade partner, the President would have no reason to adhere to the detailed fact-finding, transparent process requirements, and limitations on tariff levels that Congress specified in Section 301," the brief said.
The history of IEEPA confirms that it doesn't include a tariff power, the brief said. The members addressed the dissenting opinion from the U.S. Court of Appeals for the Federal Circuit, which said tariffs and trade is an area where the president has his own, independent constitutional authority, thus allowing for broad delegations of power.
Tariffs don't involve the president's "role and responsibilities in foreign affairs," the brief said. "Tariffs are paid by U.S. importers who decide to purchase a foreign good, and they are assessed under U.S. laws and regulations at rates established by Congress."