Advocacy Group Backs Importers' Bid for SCOTUS to Hear IEEPA Tariff Suit
Only the Supreme Court can provide the "finality and certainty that America's businesses need" in ruling that the International Emergency Economic Powers Act doesn't provide for tariffs, libertarian advocacy group the Washington Legal Foundation argued in a June 18 amicus brief. Urging the high court to take up two importers' IEEPA suit prior to full review by the U.S. Court of Appeals for the D.C. Circuit, the foundation argued that IEEPA doesn't provide for tariffs and that only SCOTUS can "provide certainty and finality on that question" (Learning Resources v. Trump, Sup. Ct. # 24-1287).
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Learning Resources and Hand2Mind, the two importers challenging the IEEPA tariffs, urged the high court on June 17 to review the sole question of whether IEEPA provides for tariffs (see 2506170073). Following a ruling from the U.S. District Court for the District of Columbia in the case finding that the statute doesn't confer tariff-setting authority, the importers sought to skirt review by the D.C. Circuit and get a ruling as quickly as possible.
The Washington Legal Foundation supported the companies' writ petition, arguing that the Supreme Court will hear the arguments on IEEPA in one case or another and that there's "no reason to wait."
As with other "separation-of-powers cases in which the Court has expedited review," the suit is a "straightforward statutory interpretation case with 'staggering' economic consequences," the amicus said, noting that it's an "understatement" to call the matter a "trillion-dollar question." Whether IEEPA allows for tariffs "is a question with purchasing, production, and pricing decisions for every business in America that engages, even in an ancillary fashion, in the international marketplace," the brief said.
Should the Supreme Court set IEEPA aside as a tariff-setting tool, the Executive can impose tariffs only via authorities that are "strictly time-limited," require a "pre-tariff investigation" or have a "notice period before rates go into effect." These procedural protections would provide market actors with much needed certainty and lead times to adjust, the amicus argued.
"If the business community must live with the uncertainty of a moving target, it at least ought to be certain how the target can move," the brief said. And if the IEEPA tariffs are unlawful, then uncertainty is being imposed on the U.S. economy "for naught." In either case, "there's no reason to let this drag on," the brief said.
On the substantive front, the foundation argued that IEEPA doesn't provide tariffs, criticizing the Executive's interpretation of the law, which solely rests on the statute's permission to "regulate ... importation." Neither the powers discussed before the word "regulate" in the statute," nor the "sixteen words between 'regulate' and 'importation,' raise even the ghost of a tariff authority," the brief said. "Far from rote rate-setting of customs duties, those sixteen words involve compellence, voidance, prevention -- traditional national-security or wartime aims one would expect in a sanctions authority."
In all, President Donald Trump "rests his legal justification on two plucked words, sixteen apart (out of 76 operative words in the relevant subsection), with one of those plucked words given an uncommon meaning." The foundation told the high court to strike down this extraordinary grant of authority taken from "modest words" and "vague terms" plucked from a "pocket of the U.S. Code" as it has done in other instances.
"Regulate" no more lets the president impose tariffs than "waive or modify" allowed President Joe Biden to cancel student debt, "necessary" gave the power to "freeze evictions nationwide" or "drug" gave free rein to "regulate tobacco products," the brief said, citing three prior, marquee Supreme Court separation-of-powers decisions.