For several months, the Trump administration has aggressively deployed the International Emergency Economic Powers Act of 1977 (IEEPA) to impose (and in some cases subsequently modify) significant tariffs on U.S. trading partners. IEEPA is a very broadly-worded statute empowering the president to “deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the president declares a national emergency with respect to such threat.” Often invoked by presidents in levying economic sanctions against foreign states and actors, IEEPA also empowers the president to “regulate … importation.” Notably, President Nixon’s 1971 tariffs under an identically worded provision of the Trading with the Enemy Act of 1917 (TWEA) was upheld by the U.S. Court of Appeals for the Federal Circuit’s predecessor.
On May 28, 2025 in V.O.S. Selections v. United States, the U.S. Court of International Trade (CIT), an Article III court, invalidated much of the Trump administration’s tariff program as exceeding the president’s authority under IEEPA. The CIT panel briefly mentioned that its analysis was informed by concerns over unbounded delegation to the president that might be addressed through the Supreme Court’s “major questions” doctrine (MQD). As discussed in our earlier piece, if congressional action is not forthcoming (as is likely the case), we recommend a serious brushback of the president’s aggressive, unpredictable tariff regime and encourage the application of constitutional non-delegation principles to the president’s authority under IEEPA. Delegation to the president under IEEPA is a serious problem because there are no real limits on the president’s declaration of an emergency under the National Emergencies Act of 1975 (NEA), once the Supreme Court overturned the “legislative veto” provided by the NEA as a check on presidential discretion.
While we understand the CIT panel’s concerns over IEEPA’s seemingly unlimited delegation to the president to set tariffs, we question the court’s reasoning in reaching its result. We also question a recent ruling of the District Court for the District of Columbia that IEEPA’s authorization of the president to “regulate” imports simply does not include tariffs. Both decisions reflect the limits of constitutional avoidance techniques when a direct frontal challenge to IEEPA on non-delegation grounds is warranted.
Background: The Tariffs
Two different tariff schemes were at issue in the V.O.S. decision. First, on February 1, 2025, President Trump issued three executive orders (EOs) imposing tariffs on Mexico, Canada, and China on the basis of a national emergency at the southern borders regarding fentanyl. Together, the CIT referred to these as the “Trafficking Tariffs.” These EOs were amended several times, primarily to delay their implementation. (See EOs 14226 (March 2, 2025), 14227 (March 2, 2025), 14228 (March 3, 2025), 14231 (March 6, 2025), 14232 (March 6, 2025), 14256 (April 2, 2025), 14289 (April 29, 2025)). Second, President Trump announced another sweeping set of tariffs on April 2, 2025, targeting the vast majority of countries and imposing anywhere between a 10% to 50% tariff on their products (the “Worldwide and Retaliatory Tariffs”). President Trump also amended this executive order several times, primarily to change rates for specific countries. (See EOs 14259 (April 8, 2025), 14266 (April 9, 2025), 14298 (May 12, 2025)).
President Trump invoked IEEPA as the principal basis for these tariff measures. As briefly introduced above, IEEPA authorizes the president to “regulate… importation” as long as the president first declares a national emergency under the NEA regarding “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States…” At one time, Congress could, under the NEA, terminate any declared national emergency by concurrent resolution of both houses, but the Supreme Court removed that critical check on executive power when it declared the “legislative veto” unconstitutional in INS v. Chadha (1983).
Both state and private plaintiffs challenged each of the Trump tariff schemes described above, and eventually the CIT consolidated several challenges in the V.O.S. case. On May 28, the CIT ruled that each set of tariffs lie beyond the scope of IEEPA, for different reasons. Unfortunately, neither part of the court’s analysis withstands close scrutiny.
V.O.S Decision: The Worldwide and Retaliatory Tariffs
The CIT first considered the Worldwide and Retaliatory Tariffs. Even though IEEPA expressly provides for some tariff authority, and even though President Nixon’s nearly across-the-board 10 percent ad valorem charge on imports in 1971 had been sustained under a statute containing in relevant part the same language as the IEEPA, the CIT concluded that the power in IEEPA to “‘regulate… importation’… does not authorize anything as unbounded as the Worldwide and Retaliatory Tariffs.” The trade court reasoned that IEEPA’s “regulate. . .importation” language does not confer an unlimited grant of tariff authority, for such a grant would run afoul of the non-delegation and/or major questions doctrines. Consequently, the court “read[] ‘regulate . . . importation’ to provide more limited authority so as to avoid constitutional infirmities.” Without identifying those limits or where in the text of IEEPA they could be found, the V.O.S. court stated that the Trump tariffs “contain no . . . limits,” and concluded that the Worldwide and Retaliatory Tariffs exceeded the scope of IEEPA and were invalid.
The CIT panel acknowledged that in 1975 the Court of Customs and Patent Appeals (the predecessor to the U.S. Court of Appeals for the Federal Circuit) ruled in United States v. Yoshida Int’l Inc. to uphold the 1971 Nixon tariffs under the Trading with the Enemy Act (TWEA). The TWEA is IEEPA’s predecessor, and contained identical regulation of “importation” language as in IEEPA. The Yoshida court held that “the TWEA authorized the president, during an emergency, to exercise the delegated substantive power, i.e., to ‘regulate importation,’ by imposing an import duty surcharge.” The court did express concerns, however, over the constitutionality of broad delegations under the TWEA, and noted that the Nixon tariffs had not exceeded rates that had been prescribed in the tariff schedules of the United States.
In part to minimize the precedential force of the Yoshida ruling, the CIT urged that “the words ‘regulate . . . importation’ have a narrower meaning” in IEEPA than they did in the TWEA – namely, that this language in IEEPA did not authorize balance-of-payments tariffs. Despite the fact that Nixon’s 1971 tariffs in Yoshida also involved balance-of-payments concerns, the CIT premised its conclusion on the Trade Act of 1974 (“Trade Act”) and various statements from the committee reports for IEEPA.
There are several problems with the court’s reasoning. First, the trade court asserted that Section 122 of the Trade Act precludes the president from dealing with balance-of-payment issues under IEEPA. There is no basis in the text of the Trade Act to support this determination; for instance, no language in the Trade Act supports such preclusion, nor did the Trade Act amend the TWEA (still the principal legislation for emergency economic powers at the time) in this respect. Even if there was express language in the Trade Act, it would be difficult to argue that the IEEPA, which became law three years late in 1977, implicitly incorporated an exclusion for balance-of-payment tariffs. And, as the Supreme Court made clear in Branch v. Smith (2003), implied repeals of federal statutes are disfavored and will only be found “where provisions in two statutes are in ‘irreconcilable conflict,’ or where the latter Act covers the whole subject of the earlier one and ‘is clearly intended as a substitute.’”
Second, the CIT invoked language from the House committee report accompanying IEEPA stating that IEEPA was meant to provide “somewhat narrower powers [than the TWEA] subject to congressional review in times of ‘national emergency.’” The CIT assumed this statement referred to tariff authority but that inference is difficult to square with IEEPA’s carryover of identical “regulat[ing]… importation” language from the TWEA. Congress knows how to modify IEEPA when that is its intention, as when it expressly transferred the TWEA’s export control provisions to the Export Administration Act of 1979.
Since there is nothing in IEEPA’s text or legislative history that supports the CIT’s contention that “regulate… importation” means something different in IEEPA than it did in the TWEA, it seems difficult to avoid the conclusion that IEEPA authorizes some form of tariff authority (although we agree that the absence of limits is troubling and raises serious non-delegation concerns). In general, we support application of the constitutional avoidance canon to the IEEPA, but that canon ordinarily requires that a fair reading of the text provides a basis for the requisite limits on presidential discretion. As the Supreme Court has observed in Jennings v. Rodriguez (2018), the canon permits a court to “‘choos[e] between competing plausible interpretations of a statutory text,’” not carte blanche to “rewrite a statute as it pleases” whenever a constitutional issue may arise.
The Trafficking Tariffs
The CIT’s treatment of the Trafficking Tariffs also raises fundamental problems. In rejecting application of the political question doctrine, the CIT suggested that the president’s declaration of an emergency may be justiciable – a position in tension with prior Supreme Court decisions that courts should not second-guess the president’s declaration of an emergency, and one that would be entirely unworkable in the related economic sanctions arena where speed and surprise are often essential.
The trade court then turned to the tariffs President Trump imposed on Canada, Mexico, and China based on the emergency declared at the southern border. The CIT concluded these tariffs also exceeded the remit of IEEPA because they did not “deal with” the threat declared in the associated national emergency. The CIT reasoned that the “deal with” language “connotes a direct link between an act and the problem it purports to address,” and “. . .there is no such association between the act of imposing a tariff and the ‘unusual and extraordinary threat[s]’ the Trafficking Orders purport to combat.” Collecting customs, the court explained, “does not evidently relate to foreign government’s efforts ‘to arrest, seize, or detain, or otherwise intercept’ bad actors within their respective jurisdictions.” It is not sufficient, as the Government asserted, that the tariffs will deter “importation of illicit drugs concealed within seemingly lawful imports.” This was, in the trade court’s view, an unauthorized use of tariffs for the purpose of creating leverage rather than dealing directly with the “specific problem of drugs smuggled within shipment of dutiable merchandise.” Such a reading, the trade court stressed, “would cause the meaning of ‘deal with an unusual and extraordinary threat’ to permit any infliction of a burden on a counterparty to exact concessions.” Presumably, on this reasoning, President Biden should not have imposed trade sanctions on Russia under IEEPA because they did not directly deal with the problem of Russian bombing of Ukrainian cities. In essence, the trade court imported a proximate-cause type limit on IEEPA powers that the statutory text does not readily accommodate and raises questions about United States economic sanctions generally.
IEEPA has provided the statutory authority for much of this country’s economic sanctions regime – measures designed with the undisputed purpose of creating leverage to encourage or discourage specific actions by foreign states and actors. In fact, the very first use of IEEPA was President Carter’s imposition of sanctions against Iran in the wake of the Iran Hostage Crisis. Under the “deal with” standard fashioned by the CIT, President Carter’s use of IEEPA to help effectuate the return of U.S. citizens held hostage in Iran would be deemed beyond the scope of the statute. In an effort to strike down the Trump tariffs, the CIT places in question the entire economic sanctions regime of the United States.
The District Court’s Decision in Learning Resources v. Trump
Shortly after the CIT issued the V.O.S. decision, the District Court for the District of Columbia also issued a preliminary injunction prohibiting the enforcement of the tariffs in Learning Resources, Inc. v. Trump (2025). Citing the Supreme Court’s landmark decision in Gibbons v. Ogden (1824), the district court concluded that IEEPA does not authorize tariffs because “the power to regulate is not the power to tax.” As the taxing power is separate from the foreign commerce clause, the district court reasoned, “they are not substitutes.” Using dictionaries to analyze the ordinary meaning of the language used in the statute, the trial court explained that “[t]o regulate something is to ‘[c]ontrol by rule’ or ‘subject to restrictions,’” whereas tariffs are “schedules of ‘duties or customs imposed by a government on imports or exports.’” Under this approach it is hard to understand what IEEPA’s regulat[ing]… importation” language could possibly mean if it does not include setting of tariffs and other surcharges.
As the district court saw it, IEEPA authorizes the president to “issue such regulations, including regulations prescribing definitions, as may be necessary for the exercise of the authorities granted by [IEEPA].” It does not authorize the levying of tariffs or similar surcharges. The court flatly rejected the conclusion reached in Yoshida that IEEPA authorized tariffs, characterizing the Yoshida decision as “purposivist” and “no longer how courts approach statutory interpretation.” Admittedly, and as the district court stressed, Yoshida is not binding precedent in the D.C. Circuit. But Yoshida is binding on the CIT which is likely the only court having jurisdiction to hear this case (a subject for another article).
In its appeal to the D.C. Circuit, the Government argued the text “regulate… importation” clearly encompasses tariffs and that the Yoshida ruling was incorporated into IEEPA because, as the Supreme Court stated, “when Congress ‘adopt[s] the language used in [an] earlier act,’” courts “presume that Congress ‘adopted also the construction given by this Court to such language.’”
Major Questions Doctrine
It is tempting to seize and build upon the brief references by both the CIT and Learning Resources court to the MQD, but we note some difficulties with doing so. The Supreme Court has yet to apply the MQD to a direct delegation to the president. In West Virginia v. EPA (2022), Chief Justice Roberts characterized the series of Major Questions cases as involving “regulatory assertions,” noting that “[a]gencies have only those powers given to them by Congress” and that an agency “must point to clear congressional authorization for the power it claims.” This position did not change in Biden v. Nebraska (2023), which, despite its name, involved a delegation to the Secretary of Education under the Higher Education Relief Opportunities for Students Act of 2003. Admittedly, a delegation is a delegation, and the Court may one day apply the MQD to direct delegations to the president, which, we believe, would have significant implications for many statutes in the immigration and national security areas.
A second difficulty is that the Court’s MQD decisions to date have involved the exercise of “unheralded” or “newfound” powers or powers of an “unprecedented nature” departing from previous government interpretations and actions. Admittedly, President Trump’s executive orders are the first tariff measures invoked under IEEPA, but, as discussed above, there is the precedent of President Nixon’s 1971 tariffs under the identically worded provision of the TWEA.
None of these difficulties is insurmountable. We think the better course is a frontal challenge on non-delegation grounds to IEEPA in both tariff and economic sanctions arenas. Once the restraining influence of the legislative veto was eliminated by the Supreme Court in Chadha, the president’s authority under IEEPA indeed knows no bounds.
