Bench Memo - The Trump Tariff Case: Separation of Powers, Delegation, Emergencies, and Pretext

[Nevilledog]

https://www.justsecurity.org/123818/scotus-trump-tariff-separation-powers/

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.

*snip*