The Volokh Conspiracy
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Overview of the Amicus Briefs Filed in Our Tariff Case
The diversity and quality of the briefs opposing Trump's "Liberation Day" tariffs speaks for itself.
Yesterday, the Liberty Justice Center and I filed our appellate brief VOS Selections, Inc. v. Trump, the case challenging Trump's massive "Liberation Day" tariffs on behalf of five small businesses. We are working with Neal Katyal and Michael McConnell, both leading constitutional law scholars and appellate litigators. The case is before the US Court of Appeals for the Federal Circuit, consolidated with a related case filed by 12 state governments, led by Oregon. We are defending a unanimous ruling in our favor by the US Court of International Trade. The key issue, as before, is that the government claims the International Emergency Economic Powers Act of 1977 (IEEPA) grants the president unlimited power to impose tariffs on any nation, in any amount, for any reason, for any length of time. We contend IEEPA grants no such authority, and if it did it would be an unconstitutional delegation of legislative power to the executive.
Yesterday was also the deadline for amicus briefs filed in support of our side. This post is an overview of some of the most notable ones. The bottom line is that rarely has a case attracted such a broad and impressive range of amici from across the political spectrum, and different sectors of the economy and civil society. Many of the briefs also make important points. By contrast, there are only two amicus briefs supporting the government, both filed by divisions of Stephen Miller's right-wing nationalist America First organization.
There are a total of eighteen briefs backing our position, so I can only comment on a few aspects of them. I have included links, so interested readers can get more detail from the briefs themselves.
Advancing American Freedom, et al.: AAF is a conservative organization founded by former Vice President Mike Pence. Together with them on the brief are several other consevative and libertarian groups, including the Independent Institute and the Mountain States Policy Center. The brief focuses on why the government's interpretation of IEEPA violates constitutional nondelegation constraints on the transfer of legislative power to the executive. It is particularly strong on the original meaning.
George Allen, et al.: This brief is on behalf of a bipartisan group of prominent legal scholars and former government officials. The legal scholars include Harold Koh (Yale), Richard Epstein (NYU), Alan Sykes (Stanford), and Gerard Magliocca (Univ. of Indiana). Epstein is probably the world's most prominent libertarian legal academic, while Koh is a prominent left-liberal scholar known for his work on national security law. There are few, if any, other constitutional cases where both of them join the same amicus brief! The ex-government officials former Republican Attorney General Michael Mukasey, former GOP Virginia Governor and Senator George Allen, former Senator and Secretary of Defense Charles Hagel, and more. The brief especially focuses on the argument that IEEPA doesn't authorize tariffs, and that there is no genuine "emergency" here.
Brennan Center for Justice (NYU): The Brennan Center is a leading left-liberal research institute focusing legal issues. Among the co-authors is Elizabeth Goitein and Katherine Yon Ebright. Goitein is one of the nation's leading experts on emergency powers, and the brief gives a compelling explanation of why trade deficits do not qualify as an "emergency" or an "unusual and extraordinary threat" (both are necessary to invoke IEEPA). For those keeping track, Goitein also opposed President Biden's abuse of emergency powers in the student loan case, as did I.
Burlap and Barrel: This brief is on behalf of one the many thousands of businesses severely harmed by the tariffs. It's a great illustration of why protectionism makes no economic sense. Burlap and Barrel imports spices, many of which are difficult or impossible to produce in the US. Imposing tariffs on their products harms American consumers and businesses, for little if any gain to anyone else. Several of our own clients are in the same positions, include lead plaintiff VOS Selections, which imports wine; the wine they import, in many cases, simply cannot be produced in the US, given differences in climate and soil.
Cato Institute: Cato is the nation's leading libertarian think tank, and their brief focuses on the constitutional nondelegation issue, providing a strong overview of the relevant history and original meaning. In addition to my main job as a law professor at George Mason University, I am the Simon Chair in Constitutional Studies at Cato. But I had no role in writing the brief.
Consumer Watchdog: This group promotes consumer interests. The brief is co-authored by prominent legal scholar Alan Morrison (George Washington Univ.), who is a separation of powers expert. The brief focuses on nondelegation, and is notable for its analysis of how the Supreme Court's recent decision in FCC v. Consumers' Research bolsters our case on that issue.
Crutchfield Corp.: Crutchfield is another business severely harmed by the tariffs. They sell consumer electronics products.
Economists: This brief is on behalf of a large group of prominent economists spanning the political spectrum. They include 2024 Nobel Prize winner Daron Acemoglu, Gregory Mankiw (Harvard, former Chair of the Council of Economic Advisers under George W. Bush), Jason Furman (CEA chair under Barack Obama), Kimberley Clausing (UCLA, leading expert on international economic policy), and many more. The brief represents the consensus view of the economics profession, and explains why trade deficits are not an "emergency" or an "unusual and extraordinary threat" of the kind needed to trigger IEEPA. It also describes why the massive Liberation Day tariffs are a major policy issue triggering application of the major questions doctrine. The brief was drafted by a team led by big-name appellate litigator Adam Unikowsky.
Former Government Officials & Legal Scholars: This brief, on behalf of a group of mostly Republican former government officials, is coauthored by well-known legal scholar Mark Lemley (Stanford). Signatories include former Massachusetts Gov. Bill Weld, Peter Keisler, several former members of Congress, and Ty Cobb - former special counsel to President Trump (not to be confused with the baseball Hall of Famer of the same name).
Goldwater Institute and Dallas Market Center: Goldwater is a libertarian-leaning public interest law group. Their brief focuses on the nondelegation doctrine, and is particularly strong on the history and original meaning, showing how the Trump tariffs replicate abuses perpetrated by 17th century British monarchs whose imposition of taxes without congressional authorization set dangerous precedents the Founding Fathers sought to avoid replicating.
191 Members of Congress: This brief is on behalf of 161 Democratic members of the House and 30 Democratic Senators, including both the House and Senate minority leaders. The principal authors - Georgetown law Prof. Jennifer Hillman and Peter Harrell, were among those who first developed the idea of challenging the IEEPA tariffs using the major questions and nondelegation doctrines. The brief does an excellent job of presenting these and related points.
New Civil Liberties Alliance: NCLA is a conservative public interest law group, which filed the first case challenging the IEEPA tariffs (albeit limited to those focused on China). Their brief explains why IEEPA does not authorize tariffs, and should not be interpreted as granting that power merely because the predecessor Trading With the Enemy Act might have done so.
NYU School of Law Institute for Policy Integrity: IPI is a research institute focused on administrative law. Professor Richard L. Revesz (NYU), the principal author is a leading expert on administrative law and regulation. The brief is a thorough and compelling discussion of why Trump's use of IEEPA to impose massive tariffs runs afoul of the major questions doctrine.
Peter Sage: Mr. Sage is a retiree harmed by the tariffs, primarily in his capacity as a consumer.
Princess Awesome, et al (Pacific Legal Foundation): PLF is a leading libertarian public interest law firm, and they filed this case on behalf of their clients in Princess Awesome v. CBP - a case challenging Trump's tariffs similar to our own. The brief is notable for its compelling analysis of different variants of nondelegation doctrine. PLF is also my wife's employer; but she is not one of the authors of the brief, nor is she working on their tarif case.
Protect Democracy Project: This brief focuses on the abuse of emergency powers, and why emergency powers issues are subject to judicial review. PDP is a bipartisan group focused on constraining abuses of executive power.
US Chamber of Commerce & Consumer Technology Association: Many have asked me why major business organizations weren't supporting our case. Well, the Chamber of Commerce - the nation's biggest business federation - decided to step up! Their brief explains why IEEPA doesn't grant tariff authority, and outlines the grave harm Trump's trade war inflicts on the business community, and the American economy generally.
Vikram Amar & Mickey Edwards: Amar is a prominent constitutional law scholar, and Edwards is a former Republican member of Congress. Their brief emphasizes that delegations of legislative power to the executive should be narrowly construed, because the president's veto power makes them difficult to "retrieve" after the fact, creating a dangerous "one-way ratchet."
There were only two amicus briefs supporting the government, generated by different divisions of America First:
America First Legal Foundation: This one mostly just echoes the government's arguments.
America First Policy Institute: This one makes the weak argument that all of Trump's tariffs are authorized by Section 338 of the Smoot-Hawley Tariff Act of 1930. The Trump Administration chose not to rely on this claim, and for good reason.
