Introduction
Soon after taking office, President Donald Trump invoked the 1977 International Emergency Economic Powers Act (IEEPA) to impose a range of country-specific and global tariffs. These actions triggered legal challenges before lower courts, which consistently held against the president, including at the appellate level. In Learning Resources, Inc. v. Trump, the Supreme Court will decide two crucial questions:
(1) By enacting IEEPA, did Congress authorize the president to impose tariffs?
(2) If so, is that delegation of authority lawful?
Yet even before answering these two questions, a third threshold issue must be answered:
(3) Has IEEPA been lawfully triggered at all here? Has Trump lawfully unlocked IEEPA’s emergency powers by satisfying the necessary congressional prerequisites to invoke it? Or, as some amici assert, did Trump not only fail to meet those prerequisites, but also make an invocation of IEEPA that is pretextual and hence illegal for that reason as well?
Merits briefs have been filed by the parties and 44 groups of amici curiae: 37 in support of the challengers, 6 in support of the government, and 1 in support of neither (see here). Ahead of the Court’s oral argument on Nov. 5, 2025, this “bench memorandum” provides a concise reader’s guide to amici’s main arguments.
The Tariff Case Briefing: A Reader’s Guide
This case consolidates three separate challenges to the Trump Administration’s tariffs brought by Learning Resources and hand2mind, private companies including V.O.S. Selections, and several states (collectively “the challengers”). The challengers argue that Trump’s so-called “global reciprocal tariffs” and country-specific opioid “trafficking tariffs” are illegal, because IEEPA does not authorize the president to impose tariffs and cannot constitutionally delegate such power. The challengers also argue that the tariffs are invalid because the president’s justifications to impose tariffs do not meet IEEPA’s statutory requirements. The U.S. government rejects each of these arguments.
The Challenge to Trump’s Tariffs
The challengers urge the Supreme Court to reject the Trump Administration’s use of IEEPA to impose tariffs. They recall that the framers regarded the power to tax, which includes the power to impose tariffs, as the “most important of the authorities” held by the federal government. Accordingly, the Constitution vests that power exclusively in Congress. Although the president has significant foreign affairs powers, he has no independent constitutional authority to impose tariffs or taxes, so can impose tariffs only if Congress has specifically authorized him to do so.
• Text: The challengers assert that IEEPA makes no such specific authorization to impose tariffs. The text of the statute grants the president emergency powers to “regulate…importation or exportation” to deal with an “unusual and extraordinary threat,” emerging in whole or substantial part outside of the United States. The plain meaning of “regulate” in this context does not entail a tariffing power, according to the challengers. Because “regulate” applies to both importation and exportation, it cannot imply the power to tariff, since no branch of the federal government has the power to impose tariffs on exports. The judiciary requires Congress to speak clearly when delegating major authority to the Executive, and Congress has never delegated tariffing or taxing powers through these words.
• Legislative History: IEEPA’s legislative history also shows, the challengers argue, that Congress did not authorize the president to impose tariffs through that statute. When Congress was reforming its emergency legislation, including IEEPA, it adopted other statutes that explicitly delegated to the president limited authority to impose tariffs. They made no such provisions in IEEPA. In the 69 times that presidents have invoked IEEPA since its passage in 1977, none until Trump has attempted to use the statute to place tariffs on other nations.
• Nondelegation and Major Questions Doctrines: The challengers additionally argue that if the Court construed IEEPA’s authority to “regulate” as the power to tariff, such an interpretation would raise serious major questions and nondelegation concerns. The challengers contend that Congress has not clearly delegated the unprecedented and highly significant authority claimed by the government, raising issues under the major questions doctrine (which says that Congress must clearly authorize delegations of major economic and political significance). Additionally, the challengers submit, accepting the government’s interpretation would mean that Congress had granted the president virtually limitless authority to remake the national economy without any congressional limiting guidance or instruction — essentially usurping Congress’s full legislative power to tax, thereby raising significant nondelegation doctrine concerns.
• IEEPA Not Lawfully Triggered: Finally, the challengers address the third, threshold argument identified above: that even if IEEPA lawfully authorized the imposition of tariffs, Trump did not properly invoke it: i.e., he did not comply with the prerequisites of IEEPA that are legally required to access that statutory power. IEEPA mandates that to invoke emergency powers, the president must declare an emergency with respect to an “unusual and extraordinary” threat and can take emergency action only to “deal with” that specific threat. But here, the challengers argue, the U.S. trade deficit — the claimed emergency that the president invokes to impose the global reciprocal tariffs — is neither unusual nor extraordinary, but instead, a long-standing and persistent condition. Additionally, tariffs do not “deal with” opioid trafficking and thus fall beyond the statute’s scope.
The Government’s Response
With respect to each claim, the government asserts the opposite:
• Text: IEEPA’s language, according to the government — specifically the power to “regulate…importation”— authorizes Trump’s tariffs. The government argues that “regulate” has a broad meaning and, when paired with “importation,” encompasses the authority to impose tariffs. The government concedes that the tariffs do not directly combat drug trafficking, but it contends that the tariffs do “deal with” the declared emergencies as intended by the broad language in the statute, because they provide the president “leverage” against other countries.
• Legislative History and Precedent: To support its claim, the government points to U.S. v. Yoshida Int’l, where the Court of Customs and Patent Appeals interpreted language permitting the president to “regulate importation” in IEEPA’s predecessor statute, the Trading With the Enemies Act (TWEA), to authorize tariffs imposed by then-President Nixon. Additionally, the government argues that the other delegated powers in IEEPA suggest a broad grant of authority, rather than one that excludes the power to tariff.
• Nondelegation and Major Questions Doctrines Inapplicable: The government dismisses any concerns under the either the major questions doctrine or the nondelegation doctrine. As to the major questions doctrine, the government points to factors such as what it describes as the unambiguous nature of IEEPA’s language, as well as the fact that the statute delegates the authority at issue to the president directly in order to address emergencies (thus arguing that Congress intentionally used broad language to delegate broad powers). The government also asserts that IEEPA incorporates sufficiently clear policy articulations as well as limits to avoid nondelegation doctrine concerns. In any event, the government also claims that neither doctrine applies in the foreign affairs context, and that tariffs are a foreign affairs issue.
• Legislative Context: Responding to the challengers’ other arguments, the government asserts that other trade statutes that more explicitly delegate the power to impose tariffs should not cabin the Court’s interpretation of IEEPA. The Court should treat IEEPA as a separate source of authority that allows tariffs in different contexts.
• Against Judicial Review of IEEPA Triggering: The government argues against judicial review, especially of the question whether the emergencies constitute unusual and extraordinary threats. It alleges that allowing courts to review presidential determinations of emergencies amounts to second-guessing the president’s foreign policy judgments. The government asserts that IEEPA does not require the president to justify his determinations and only mandates reporting to Congress, and thus only the legislative, and not the judicial, branch can check presidential emergency powers.
Arguments of Amici Supporting the Government or Not Taking a Position
Seven groups of amici — consisting of two U.S. Representatives and several advocacy organizations and legal scholars and professors — filed briefs in support of the administration or neither party. Because these amici’s arguments largely track the government’s arguments urging the Supreme Court to uphold the levied tariffs, it is primarily new arguments that are described here.
• Political Question Doctrine: Amici Representatives Darrell Issa and Brian Mast contend that both the Constitution and historical precedent appoint the president as the “sole organ” of the federal government in foreign affairs. Amici American Center for Law and Justice argues that presidential emergency determinations constitute nonjusticiable political questions: “quintessentially executive judgment[s]” committed entirely to the political branches. Determining whether an unusual and extraordinary threat exists to trigger IEEPA requires, they assert, assessments of complex geopolitical considerations, classified intelligence, and predictive decision-making that courts lack the expertise and institutional capacity competently to review. These amici further argue that any judicial review of presidential emergency declarations would violate separation of powers by second-guessing the president’s foreign affairs decisions. The statutory design of IEEPA and the National Emergencies Act (NEA) support this notion, S. Reps. Issa and Mast assert, because those statutes establish processes for presidential or congressional termination of, not judicial oversight of, national emergencies.
• IEEPA Authorizes Presidential Tariffs: Amici supporting the government offer varied claims to support the interpretation that IEEPA’s delegation to the president of the power to “regulate…importation” includes the power to impose tariffs. Amici Jill Homan and the nonprofit America’s Future argue that the Court should construe the terms to authorize tariffs because tariffs have been used throughout U.S. history to regulate commerce. Representatives Issa and Mast, like Professor Aditya Bamzai (who supports neither party), point to previous instances where the Court interpreted “regulate” in other statutes to include a power to tax. Additionally, amici suggest that because the other delegated powers in IEEPA are broad, “regulate…importation” should be read broadly to include the power to impose tariffs. The American Center for Law and Justice suggests that congressional acquiescence confirms this broad reading (Authors’ Note: since these amicus briefs were filed, the Senate has voted to end the emergencies the president declared to impose global tariffs and country-specific tariffs on Canada).
• Legislative History and Context: Supporting neither party, Professor Aditya Bamzai points to IEEPA’s legislative history and its relationship to TWEA, because in the Yoshida case, a lower court interpreted TWEA to delegate to the president the power to impose tariffs. Thus, notwithstanding Congress’s intent by adopting IEEPA to cabin TWEA’s emergency powers, Bamzai claims, because Congress copied TWEA’s previously interpreted language into IEEPA and did not formally deny the power to tariff, Congress implicitly delegated the power to tariff. Amicus Bamzai expressly acknowledges, however, that the power to tariff implicates the power to tax. In the alternative, America First Policy Institute argues that even if the Court finds IEEPA does not authorize Trump’s tariffs, it could nevertheless uphold them under Section 338 of the Trade Act of 1930 — even though the president has not invoked this provision. Amici Jill Homan and Representatives Issa and Mast add that because tariffs are not necessarily taxes, construing IEEPA to authorize tariffs does not necessarily intrude upon Congress’s exclusive constitutional authority to impose taxes (see further related arguments from amicus Chad Squitieri here).
• Inapplicability of Nondelegation and Major Questions Doctrine:The American Center for Law and Justice contends that the concerns raised by the nondelegation and major questions doctrines should not apply here because foreign affairs and national security are at issue. Alternatively, Representatives Issa and Mast contend the statute would satisfy existing nondelegation requirements since IEEPA incorporates specific preconditions for presidential action.
Arguments of Amici Supporting the Challengers
The overwhelming majority of the amicus briefs filed — thirty-seven groups of amici ranging from bipartisan coalitions of Members of Congress to economists and national security officials to former federal judges to farmers and businesses — support the challengers in urging the Supreme Court to invalidate Trump’s IEEPA tariffs.
IEEPA Does Not Authorize Tariffs: In support of the challengers, most amici assert that, based on its statutory text and background, IEEPA does not authorize the president to impose tariffs. These arguments are based on:
• Text: The statute lacks terms Congress typically uses to permit tariffs (“duties,” “imposts,” “tariffs”), and its authorization to “regulate” “importation” does not include revenue-raising authority. The Washington Legal Foundation says it “strains credulity” to read “regulate … importation” as conferring the power to tariff when the two words are far apart in the statute and surrounded by other non-tariff delegated powers.
• Original Meaning of the Constitution: Amici George Allen et al. (including Koh, one of the co-authors of this blogpost) reject the government’s contention that foreign affairs and national security considerations create an “escape hatch” or carveout that permits otherwise impermissible delegations. Any such non-rigorous nondelegation standard for national security or foreign affairs should not, in any event, apply here because, from the founding, Article I vests Congress with the exclusive power to levy taxes and duties and the power to tariff. Under the original meaning of the Constitution, the president, by contrast, had no tariff or commerce authority.
• Legislative Intent: Amici Vikram Amar and Mickey Edwards contend that Congress intended IEEPA to constrain, not expand, presidential emergency economic powers. Congress enacted IEEPA and the NEA, which gives the president the power to declare national emergencies subject to specific oversight requirements—to rein in, not expand, presidential powers. After decades of presidential overreach during continuous states of emergency, the NEA restored congressional control over the irresponsible declaration of national emergencies, while IEEPA restricted the President’s use of emergency powers to situations that meet a narrow statutory threshold. Thus, as amici former national security officials argue, the NEA and IEEPA exude distrust of, not deference to, presidential invocations of emergencies.
• Past Legislative Practice: Where Congress has intended to authorize tariffs, it has enacted detailed trade statutes with express language imposing carefully calibrated limits on presidential tariff authority. The absence of such clear statutory language permitting tariffs in IEEPA means it cannot be read to override decades of trade legislation. In addition, amici California, Constitutional Accountability Center and Professors of Foreign Relations Law dismiss the assertion based on the Yoshida case that IEEPA’s incorporation of language from a predecessor statute, TWEA, indicates that IEEPA permits tariffs, since the Yoshida court had ruled that TWEA conferred tariff authority. The CATO Institute notes that for nearly 50 years until now, no president ever interpreted IEEPA to authorize tariffs—a “telling signal” that Congress never intended to delegate that power to the Executive
• Disruption of the Legislative Landscape: Amici George Allen et al. contend that the president’s IEEPA tariffs ignore and override Congress’s statutory schemes for trade and tariffs. The political branches have established a U.S. trade and tariff policy centered on principles of equal treatment and most-favored-nation status through statutes and treaties. By attempting to use IEEPA, they argue, the president seeks to sidestep Congress’s carefully created statutory limits and procedures, undermining longstanding U.S. trade policy.
• Major Questions and Nondelegation Doctrine: Amicus NYU Law Institute for Policy Integrity asserts that there is no foreign affairs or national security exception that negates the requirement that Congress must clearly authorize such a significant delegated power. Interpreting IEEPA to allow tariffs would transfer Congress’s taxing power to the Executive when Congress made no express authorization. Professors of Administrative Law argue that even if IEEPA expressly authorized the president to impose tariffs, such an open-ended delegation of legislative authority to the executive branch would violate the separation of powers. Consumer Watchdog adds that IEEPA provides no guiding “intelligible principle” defining the duration, rate, amount, or scope of any such tariffs, nor does it establish substantive guardrails to constrain the president’s discretion. Construing IEEPA broadly would thus grant the president unbounded tariff power that would swallow Congress’s exclusive authority.
Arguments of Pro-Challenger Amici regarding “Pretextual Emergencies”
The Claimed “Emergencies” Are Reviewable
Rejecting the government’s and a few pro-government amici’s arguments that various justiciability doctrines bar the Court from inquiring into the validity of emergencies, several amici—including a group of 31 former federal judges—assert that the Court can and must review whether the president has met the statutory requirements imposed by the NEA and IEEPA to invoke emergency powers.
The President Did Not Meet IEEPA’s Statutory Requirements
Several amici argue that the president did not meet IEEPA’s statutory requirements.
• No Unusual or Extraordinary Threat: First, amici argue that the president’s declared emergencies are not unusual or extraordinary threats. For instance, economists and former government officials assert that trade deficits do not qualify as unusual and extraordinary threats under IEEPA because they are long-standing and persistent, and in any event do not pose a “threat” within the meaning of IEEPA. In fact, Congress gave the president the power to address trade deficits through a separate, non-emergency statute: the Trade Act of 1974. Second, former national security officials contend that, as a similarly long-standing problem, fentanyl trafficking is not an unusual and extraordinary threat under IEEPA. The government’s own data show the tariffed countries were already addressing these issues, and Congress spoke to the narcotics problem through other statutes. Third, even if the threats were legitimate, amici Scott Lincicome et al. assert that tariffs “deal with” neither the trade deficit nor fentanyl trafficking, as IEEPA requires.
The President Has a Constitutional Duty to Make Bona Fide, Non-Pretextual Emergency Declarations
Two briefs — one filed on behalf of Peter Sage and one filed on behalf of former senior U.S. government officials John Bellinger et al. by Susman Godfrey and the Peter Gruber Rule of Law Clinic at Yale Law School (including some of the authors of this Reader’s Guide) — argue that both the trade deficit and fentanyl trafficking emergencies are pretextual, and hence illegal.
• The President Has an Affirmative, Constitutional Duty to Faithfully Execute the Laws: This responsibility requires the president “to be honest and engage in reasonable inquiry in finding facts that serve as predicates for exercises of power.” When a statute requires executive fact-finding to access its authorities, the president must execute fact-finding faithfully, not pretextually. As Justice Cardozo warned, in “default of such fulfilment, there is in truth no delegation, and hence no official action.” Accordingly, the president cannot use pretextual bases to exercise executive authority.
• No Presumption of Regularity: While the Courts generally presume that the Executive acts with procedural regularity and for bona fide, non-pretextual reasons, this presumption is not iron-clad. Where there is “clear evidence” that officials have not properly discharged their duties, such as by acting pretextually, courts may inquire into the Executive’s stated rationale.
• The President’s Invocations of IEEPA Are Pretextual: When adopting the NEA and IEEPA, Congress intended the statutes to impose “carefully constructed legal safeguards” that would ensure the president exercises emergency economic powers “only when emergencies actually exist.” Accordingly, to wield IEEPA’s emergency economic powers, the president must declare a national emergency under the NEA with respect to a genuine threat that is unusual and extraordinary. In this case, however, amici argue, the president’s invocation of IEEPA “cannot be adequately explained in terms of” the president’s declared threats: trade deficits and fentanyl trafficking. Rather, amici contend the president’s stated rationales are pretextual for the following reasons:
• Trade Deficit Tariffs: Objective facts and the Administration’s own actions, amici assert, suggest the president imposed “reciprocal” tariffs for a purpose other than responding to the alleged trade deficit “emergency.” First, the tariffs were not “reciprocal.” In fact, the president’s actions under IEEPA generally set tariffs at rates much higher than those imposed on U.S. goods. Second, the Executive provided shifting justifications for the “reciprocal” tariffs, including raising revenue. Third, the president almost immediately suspended, except as to China, imposition of these tariffs following a negative stock market reaction and emphasized the necessity of “flexibility,” which belies any argument that the trade deficit is truly an “emergency” requiring immediate action. Finally, after an additional extension, the president stated that he subjected some trading partners to tariffs even if they proposed terms that addressed trade imbalances but still “failed to align sufficiently with the United States on economic and national-security matters.”
• Trafficking Tariffs: The trafficking tariffs are similarly pretextual, amici argue. The Administration’s own assessments contradict the suggestion that the opioid threat is increasing, and that the three countries targeted—Canada, China, and Mexico—are not taking steps to address this issue. Earlier this year, the Drug Enforcement Administration reported that it has found numerous indicators that “the Government of China is controlling more fentanyl precursors to comply with recent updates to the United Nations counternarcotics treaty”—so much so that Mexican cartels are experiencing difficulties in sourcing fentanyl precursors from China. Likewise, U.S. Customs and Border Protection statistics show that 80 percent of all individuals arrested bringing fentanyl into the United States across the southwest border are not Canadian, Chinese, or Mexican nationals, but rather U.S. citizens. The claim that Canada is a major source of fentanyl is particularly disingenuous, amici note: the U.S. government’s own statistics show only 0.2 percent of the fentanyl arriving at the U.S. border came from Canada in 2024.
• True Motivation is Trade Policy: Moreover, amici assert that the public record demonstrates that other priorities—especially trade policy—motivated the president’s fentanyl tariffs. In describing why these countries’ supposed “failure to act” regarding fentanyl had become a national emergency under IEEPA, the president cited not the unusual threat of fentanyl, but his own announced “America First Trade Policy.” Just weeks after imposing these tariffs, the president declared, “Tariffs are about making America rich again.” He also used the tariffs to remove congressionally created de minimis exemptions for Chinese goods, a longstanding trade priority for the Administration. The president similarly emphasized that the main reason for the tariffs is not Canada or Mexico’s alleged role in the fentanyl trade but rather trade deficits and barriers, as well as the countries’ overall relationships with the United States.
• Separation of Powers: Amici argue that accepting the president’s invocation of IEEPA based on trade deficit and opioid threats that are usual and ordinary, or that are pretextual, would dangerously disrupt the constitutional balance between the legislative and executive branches by removing meaningful congressional restraints on delegated powers.
• Government by Emergency Will Breed More Emergencies: Finally, amici recall Justice Robert Jackson’s warning in Youngstown that accepting pretextual emergencies would provide a ready tool to usurp the constitutional balance of powers: “We may also suspect that [the Framers] suspected that emergency powers would tend to kindle emergencies.” Or as Justice Neil Gorsuch recently warned in Arizona v. Mayorkas, “one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting . . . rule by indefinite emergency edict[,] [which] risks leaving all of us with a shell of a democracy.”
