The other arguments in Trump’s tariffs case 

When the Supreme Court hears oral arguments on Wednesday in the challenges to 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 – defending the tariffs – the Trump administration. But when they vote on the case, the justices will also have considered 44 “friend of the court” 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. 

Below, I highlight several arguments from a selection of these briefs. 

Certain briefs concentrate on the text of IEEPA.

A brief on behalf of a group of 207 members of Congress (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’s “interpretation of IEEPA,” they say, “would effectively nullify the guardrails set forth in every statute in which Congress expressly granted the President limited tariff authority—a result Congress did not intend.” 

A brief from Jill Homan, the deputy director of the America First Policy Institute, a nonprofit conservative think tank, argues the opposite: that IEEPA gives the president power to impose tariffs. Specifically, Homan contends that Congress’ grant to the president in IEEPA 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, and they have been imposed specifically on imported goods.” But in any event, she continues, the Supreme Court should interpret the phrase “regulate … importation” expansively in light of the larger context of IEEPA, which “include[s] broad, sweeping powers.” 

A brief from BRB Management, which describes itself as “a small business that operates retail stores directly affected by tariffs and related trade policies,” focuses on a different part of IEEPA: its grant of authority only to “regulate … importation” of “any property in which any foreign country or a national thereof has any interest.” The company contends that at the point where tariffs are imposed on goods, they generally are owned by U.S. buyers – and therefore are not owned by foreign countries or foreign citizens. 

Other briefs focus on different laws that, they say, could justify the tariffs. 

America First Policy Institute, which describes itself as “a non-profit, non-partisan research institute” dedicated to putting “the American people first,” tells the justices that the president has the power under a different law – the Tariff Act of 1930 – 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 “that any foreign country places any burden or disadvantage” on U.S. commerce “directly or indirectly, by law or administrative regulation or practice, by or in respect to any customs, … charge, exaction, classification, regulation, condition, restriction, or prohibition.” And it doesn’t matter, the group says, that Trump did not rely on this provision in his executive orders imposing the tariffs. 

Erica Hashimoto, the director of the Georgetown University Law Center’s Appellate Litigation Clinic, filed a brief on behalf of a group of trade scholars arguing that a different trade law – Section 122 of the Trade Act of 1974 – 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. 

The history of U.S. trade law is at the center of many of the briefs filed with the court. 

A brief on 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, “IEEPA continued (but narrowed) the authority that its predecessor, the [Trading with the Enemy Act], granted the President to impose sanctions and embargoes,” and presidents for almost 50 years have interpreted it as such. If the court upholds the tariffs, the officials say, it would “risk[] undermining the ability of this President and future Presidents to use IEEPA, as Congress intended, to address foreign policy crises.” 

Carla Anderson Hills, who served as the U.S. Trade Representative during the George H.W. Bush administration, and Alan William Wolff, an international trade lawyer who has served in senior roles in the federal government, tell the justices that Trump’s use of IEEPA “as a means for correcting trade deficits conflicts with “the United States’ systematic and unbroken practice of implementing trade laws since the ratification of the U.S. Constitution.” Because it is not clear whether IEEPA gives the president the power to impose the tariffs, they argue, that practice should “carry substantial weight.” Of note, Hills and Wolff are represented by  Roderick M. Hills, Jr., a professor at New York University’s law school and the son of Carla Anderson Hills.  

Aditya Bamzai, a law professor at the University of Virginia Law School, filed a brief in 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 “the use of a ‘tax’ or ‘fee’ was an appropriate method to regulate trade with the enemy under the classic laws of war.” 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 – “regulate … importation” – found in IEEPA. Therefore, he writes, “that language is best read to have the same meaning that it had when used in the TWEA before the passage of the IEEPA.” 

The Constitutional Accountability Center, which describes itself in the brief as “a think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text and history,”  contends that Congress’ enactment of IEEPA “reflects a deliberate severing of peacetime emergency powers from their war powers origins,” “undermining any inference that Congress silently included the extraordinary power to impose tariffs within IEEPA’s regulatory authorities.” 

A group of tax law professors argues that Congress, rather than the president, should determine tariffs. This conclusion, they say in their brief, 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 “divisive questions” like “taxation and foreign imports” “would be settled by a large, representative, and deliberative legislature—not by a single Executive.” 

The Cato Institute, which describes itself in its brief as “a nonpartisan public-policy research foundation … dedicated to advancing the principles of individual liberty, free markets, and limited government,”points to history to argue that “Congress knows how to give the President discretion—within limits—to modify tariff rates.” Moreover, Cato contends, whatever the phrase “regulate … importation” might have meant in the context of the Trading With the Enemy Act, “the historical record and this Court’s separation of powers precedents” suggest that in IEEPA Congress did not intend to give the president the power to impose tariffs in peacetime. 

Several briefs focus on whether the tariffs violate either the “major questions” doctrine – 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 – or the nondelegation doctrine, the idea that Congress generally cannot delegate its lawmaking powers. 

The state of California and Gov. Gavin Newsom argue that 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. “The notion that Congress delegated the power to impose unbounded, devastating tariffs that could completely restructure international relations through the phrase ‘regulate . . .  importation,’ 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).” 

A brief on 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’s determination that there is an “unusual and extraordinary” threat that triggers IEEPA. That, they contend, “is a straightforward matter of statutory interpretation” and “the type of determination that federal judges make every day.” 

A group of nonprofits and academics, led by Advancing American Freedom, a group founded by former Vice President Mike Pence, tells the justices that if IEEPA does give the president the power to impose these tariffs, “it would violate the nondelegation doctrine because …  IEEPA does not contain an intelligible principle to guide either the President’s declaration of an emergency or his implementation of tariffs.” 

A brief in support of the Trump administration from the American Center for Law and Justice, which describes itself as “an organization dedicated to the defense of constitutional liberties secured by law,” 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 “recognition that international economic crises require rapid, coordinated responses that only unified executive action can provide.” And the major questions doctrine does not apply in this case, the group says, because “foreign affairs present fundamentally different considerations” from the kinds of cases involving “domestic regulatory overreach by unelected administrators” that the doctrine was designed to address. 

Consumer Watchdog, a group that describes itself as a “non-profit, non-partisan public interest organization dedicated to protecting consumers from economic harm,” argues that Trump’s tariffs violate the nondelegation doctrine. Trump, the group says, contends “that IEEPA silently gives him” “immense power.” But the tariffs are not linked to “any limits or conditions in IEEPA – and everything determined by the unfettered choices of the President.” That, the group says, runs afoul of the requirement that, if Congress delegates its authority, it must provide an “intelligible principle” to guide the exercise of that authority. 

Some briefs focus on, among other things, where the challenges to the tariffs should be filed. 

A brief supporting the Trump administration from two members of Congress – Reps. Darrell Issa and Brian Mast – as well as America First Legal Foundation, a nonprofit law firm co-founded by Stephen Miller, and the Coalition for a Prosperous America, which describes itself as “the only national non-profit organization representing exclusively domestic producers across many sectors and industries of the U.S. economy,” 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 “authorizes embargoes for reasons other than public safety” – which brings lawsuits arising out of IEEPA under the purview of the Court of International Trade. 

A brief filed on behalf of several small businesses, led by Emily Ley Paper, that are challenging the tariffs in their own litigation, as well as the New Civil Liberties Alliance, 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 – rather than the Court of International Trade – has the power to hear the disputes over the tariffs.   

Some briefs supporting the challengers touch on the effects (or lack thereof) of the court’s decision. 

The U.S. Chamber of Commerce and the Consumer Technology Association state that, as a result of the tariffs, “businesses have been forced to raise prices, freeze hiring, and postpone investments”; moreover, they add, “for all businesses and investors, the President’s claimed authority to impose, modify, pause, and remove tariffs under IEEPA at the drop of a hat is resulting in chaos and uncertainty.” Finally, they warn that if the court upholds the president’s authority, future administrations “will have similarly expansive authority to impose worldwide tariffs based on their own objectives.” 

A brief on behalf of the National Taxpayers Union Foundation, which describes itself as “a non-partisan research and educational organization dedicated to showing Americans how taxes, government spending, and regulations affect everyday life,” focuses largely on the facts underlying the case and the effects of a ruling for the challengers. The group contends that “trade 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.” Moreover, the group add, a ruling from the Supreme Court that strikes down the tariffs would not be “catastrophic,” as the government has suggested, but would instead “simply return us to the comparatively low level of tariffs that were in place at the start of the year.” 

A group of 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, “Washington’s economy is projected to suffer a net loss of $8.1 billion in output sales between 2025 and 2029,” and the state could lose as many as 32,000 jobs. “Should the President’s tariffs remain in place,” they write, “Washingtonians 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).” 

A brief from the American Watch Association, the U.S. trade association for the watch industry, tells the justices about the effects of the tariffs on the industry. It explains that “watchmaking is a globally integrated industry that depends upon longstanding specialty manufacturers abroad” – and in particular, in Switzerland and Japan – “for essential watch components” that cannot be obtained in the United States. As a result, the group says, the industry’s costs have increased, and members of the trade association “are already being forced to lay off employees, close storefronts, or increase consumer prices.” Moreover, they add, because of “the unusually high startup costs for precision manufacturing, there is no realistic prospect that the President’s tariff program will spur the creation of new manufacturing jobs in the United States.” 

Several briefs address other arguments related to trade law and the president’s power. 

A brief filed on 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 “trade imbalances that have persisted every year since IEEPA was enacted in 1977 cannot count as an ‘unusual and extraordinary threat.’” 

A brief on 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 “the alleged threats posed by the trade deficit and lack of international cooperation on opioid trafficking,” “these are persistent, longstanding issues, not ‘unusual and extraordinary’ threats.” 

A brief on behalf of a wide-ranging group that includes constitutional scholars, legal historians, and former U.S. senators urges the court to “reaffirm the basic principle that Congress, not the President, holds the power to tax and to make major trade policy. Emergencies,” the group writes, “do 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 ‘foreign affairs’ or imagining the power to ‘regulate’ as including the power to tax.” 

Law professor Vikram Amar and former member of Congress Mickey Edwards argue 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 – as in this case – 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, “there is a relatively easy fix: Congress can pass a new bill by simple majority and the President will almost certainly sign it into law.”  

The Brennan Center for Justice, which describes itself as an “an independent, nonpartisan law and policy organization,” contends that the National Emergencies Act, a 1976 law that governs the president’s exercise of emergency powers, and IEEPA were intended to limit the president’s use of emergency powers. Trump’s executive orders imposing the tariffs, the group says, are contrary to that intent. 

A brief on behalf of the Goldwater Institute, the Dallas Market Center, and the John Locke Foundation argues first that the Supreme Court “has both the authority and the duty to determine independently whether there actually is an emergency” that would trigger the president’s powers under IEEPA. But there is no such emergency here, the brief says. 

And a brief on behalf of Peter W. Sage, who is a retiree and the owner of a small Oregon vineyard, contends that “interpreting 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.” Sage writes that he can best protect his interests if Congress, rather than the president, has authority over tariffs.