The tariffs case and whether amicus briefs matter

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

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Do amicus, or “friend of the court,” briefs matter in Supreme Court cases? As someone who sometimes writes and signs on to amicus briefs, I often wonder if they are worth the time and effort. Nonetheless, when I have been a lawyer handling a case before the Supreme Court, I always seek amicus briefs for my side.

I think amicus briefs accomplish two functions. First, they can provide arguments and information that cannot go into the merits briefs. Perhaps this is because of space limits in the merits briefs or because the amicus briefs offer alternative arguments or sometimes get before the court factual information that is not in the record.  

Second, amicus briefs can signal support from important entities and individuals whose positions might influence the justices. In cases involving medical issues, for example, briefs from medical associations are generally thought to be useful. Briefs from historians have become much more frequent as more justices embrace originalism. Those seeking a conservative result might, when possible, try to enlist notable liberal organizations to write amicus briefs, or vice versa.

All of this came to mind when I read the amicus briefs in the tariffs cases – Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections – to be argued on November 5, many of which have been described by Amy Howe. To begin with, there are fewer amicus briefs than in other recent high-profile cases and, as Amy points out, there are far more on one side than the other. Specifically, there are 44 briefs in all, with many more amicus briefs supporting the challengers to the Trump tariffs. By contrast, in United States v. Skrmetti last term, there were 33 amicus briefs supporting the challenge to the Tennessee law prohibiting gender-affirming care for transgender youth and 51 amicus briefs in favor of upholding the law.

That said, as an advocate, I am skeptical that quantity of amicus briefs is a good thing. I worry that the more amicus briefs filed, the less likely they are to be read carefully. But I also understand why groups will want to be on record taking positions in important cases before the Supreme Court. And while lawyers for the parties might try to develop a strategy for the amicus briefs in their cases, the reality is that they cannot control who files briefs on their side with the court.

In the tariffs cases, it also was striking how many of the amicus briefs against the Trump administration were filed by conservative groups. I cannot think of another case involving challenges to Trump’s actions where so many notable conservative groups filed briefs against his position. The amicus briefs arguing that the Trump tariffs are invalid included ones from the U.S. Chamber of Commerce, the Washington Legal Foundation, the Cato Institute, the National Taxpayers Union Foundation, and the Goldwater Institute. There, of course, also were briefs challenging the tariffs by entities regarded as liberal, such as the Brennan Center, and by the attorney generals of California and Washington state.

The six amicus briefs filed on behalf of the Trump administration included submissions by the America First Policy Institute, the American Center for Law and Justice, and America’s Future. There were briefs from members of Congress filed on each side. Often there are amicus briefs from law professors on both sides, but not in this case. Remarkably, there was only one law professor amicus brief supporting the Trump tariffs. Many more amicus briefs were submitted on the other side on behalf of tax professors, “scholars of the history of constitutional law and the presidency,” professors of U.S. foreign relations law, and an individual law professor.

It also was notable that the amicus briefs supporting the challenge to President Donald Trump’s tariffs largely repeated the arguments made in the merits briefs. For the most part, they did not take different approaches or try to present new information to the court. The merits briefs make two primary arguments: that Trump lacks authority under the International Emergency Economic Powers Act to impose tariffs through executive orders, and that the government’s interpretation of the law would be an unconstitutional excessive delegation of legislative power.

The amicus briefs from conservative groups echo these arguments. The brief for the Chamber of Commerce, authored by former Bush administration solicitor general Gregory Garre, argues that “IEEPA’s text does not authorize any tariffs, much less the unlimited tariff power asserted by the president here.” The argument is that the IEEPA authorizes the president to “regulate . . . importation,” but that is not a power to impose tariffs. Statutes bestowing that power are explicit in doing so. The Goldwater Institute in its amicus brief makes an argument that V.O.S. Selections also advances in its merits brief: the authority to “regulate” is different from the power to tax. It also argues that there is not an economic emergency warranting the president’s exercise of power under the IEEPA.

The amicus briefs advance the arguments made on the merits briefs as to delegation of powers. The Cato Institute brief, for example, argues that “tariff-setting is a nondelegable legislative power.” The argument is that Article I vests in Congress the power to tax and to set duties, and that this is a power that Congress cannot delegate to the president. Likewise, the brief for Advancing American Freedom stresses the nondelegation doctrine.

An amicus brief for economists, filed by Supreme Court litigator Adam Unikowsky, raises the major questions doctrine. This is a principle that the executive branch of government cannot act on a major question of economic or political significance without clear guidance from Congress. This amicus brief contends that “the Reciprocal tariffs implicate the major questions doctrine because they will have vast impact on the U.S. economy.”

There is thus relatively little in the amicus briefs that is not in the parties’ briefs.  One exception is explicit arguments that invalidating the tariffs would not be harmful. In its brief to the Supreme Court, the Trump administration says “To the President, these cases present a stark choice:  With tariffs, we are a rich nation; without tariffs, we are a poor nation …  ‘Suddenly revoking the President’s tariff authority under IEEPA,’ he warns, ‘would have catastrophic consequences for our national security, foreign policy, and economy.’”

Some of the amicus briefs respond directly to this argument. The brief of the National Taxpayers Union contends the “[t]ariffs will hurt, not help, military readiness, “foreign relations,” and “the economy and the federal budget.” A brief for “We Pay the Tariffs,” which describes itself as “an ad hoc coalition of small and micro businesses,” describes the harms to “small and micro businesses” from the tariffs. 

The underlying issue is whether the federal courts should be able to review the Trump tariffs at all. The solicitor general’s brief to the Supreme Court argues that “the President’s determinations in this area are not amenable to judicial review.  Judges lack the institutional competence to determine when foreign affairs pose an unusual and extraordinary threat that requires an emergency response; that is a task for the political Branches.” But many of the amicus briefs sharply disagree. A brief from former government officials argues the “[t]ext of IEEPA provides manageable standards that demand judicial review as a normal exercise of statutory interpretation.” 

Thus, this is not an instance of amicus briefs presenting new arguments or information to the court. Rather it is a question of whether the conservative justices are more likely to rule against Trump’s tariffs once they see the lineup of conservative amici arrayed against them.

We are unlikely to ever know whether one or more of the amicus briefs changed any justices’ minds. But we also never can know in advance whether a merits brief or an oral argument made a difference. All lawyers can do is make the best arguments they can and hope they persuade the court.