I joined this scholars’ amicus curiae brief in the tariff litigation, organized by Professor Sam Estreicher (NYU) and filed on Friday: Brief of Professors of Administrative Law, Separation of Powers, Foreign Relations Law, Legislation and the Regulatory State, and Trade Law as Amici Curiae in Support of Petitioners in 24-1287 and Respondents in 25-250.
We argue that if the International Emergency Economic Powers Act (IEEPA) grants the President essentially unlimited power to impose tariffs at his discretion (as the Trump administration argues), then the IEEPA is unconstitutional. From the summary of argument:
Although Congress may delegate some of its power to the President, it cannot delegate its responsibility to set the fundamental policy of the law and make substantive judgments. Congress must make those decisions itself, and it may then “lay down by legislative act an intelligible principle” by which the executive branch shall “carry out [Congress’s] purpose.” J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928). This requirement ensures that the Executive exercises power in the way Congress determined, and that the Judiciary can confirm the Executive complied with Congress’s directives. This Court has twice applied this doctrine—in the depths of the Great Depression, when vigorous executive action was arguably most needed—to invalidate statutory provisions that contained overbroad delegations of legislative authority. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
If the Court construes IEEPA to permit President Trump to impose the worldwide tariffs he set earlier this year, then it should rule that IEEPA transgresses constitutional constraints because Congress provided no intelligible principle for the exercise of that delegated tariff power. To begin, the nondelegation doctrine applies with full force to statutes concerning the setting of tariffs or the regulation of foreign commerce—these are matters for Congress alone. It also makes no difference that the statutes contain delegations to the President rather than another part of the Executive: the statutes invalidated in Panama Refining and Schechter Poultry also delegated authority to the President, but the Court did not hesitate to invalidate them. IEEPA violates this Court’s nondelegation doctrine. The underlying problem is the lack of enforceable standards not only for what constitutes a covered emergency, but also who can be a target, which locations can be targeted, what products or processes can be sanctioned, and how long the sanctions can exist without fresh statutory reauthorization. The Government indeed proffers a reading of IEEPA—as it must to justify the tariffs in this case—that would authorize the President to exercise nearly all of Congress’ exclusive power to regulate foreign commerce, subject only to the President’s (likely unreviewable) declaration of an “unusual and extraordinary threat” to national interests that has its source outside the United States. 50 U.S.C. §§ 1701(a), 1702(a)(1)(B). This amorphous, wide-ranging pass at a definition of a covered emergency provides no standard at all for the exercise of power. IEEPA is far less circumscribed than the delegations invalidated in Panama Refining and Schechter Poultry. The Constitution does not permit such “delegation running riot.” Schechter Poultry, 295 U.S. at 553 (Cardozo, J., concurring).
Just over six years ago, three Justices explained that “[w]ithout the involvement of representatives
from across the country or the demands of bicameralism and presentment, legislation would risk
becoming nothing more than the will of the current President.” Gundy v. United States, 588 U.S. 128, 155 (2019) (Gorsuch, J., joined by Roberts, C.J., and Thomas, J., dissenting). Just so here.
The brief is mostly doctrinal, but it has originalist underpinnings, particular in Article I’s grant of legislative power to Congress and the founding-era understanding, derived from Blackstone, that at minimum a legislative power could not be delegated without limitation to the executive. Whatever one thinks of the extensive academic debates over the strength of the nondelegation doctrine in the Constitution’s original meaning, it would seem that (a) there is some minimum standard, and (b) whatever it is, the broad reading of IEEPA violates it.
The brief makes two subsidiary points that I think are important. First, it should not matter to the nondelegation doctrine whether the delegation is to an agency or to the President directly. The nondelegation doctrine imposes an obligation on Congress to exercise the power given to it by the Constitution. Its concern is not to whom Congress may try to delegate, but rather that delegation runs counter to the Constitution’s assignment of legislative power to Congress and, correspondingly, evades the Constitution’s limits on Congress’ exercise of its legislative power.
Second, there should be no special nondelegation rule for foreign affairs. The Court suggested that there should be, in United States v. Curtiss-Wright Export Co., on the basis of an odd historical theory that has been thoroughly discredited. To be sure, the President has some independent constitutional power in foreign affairs, and delegations in the area of those independent powers may be subject to a looser standard, but setting tariffs is plainly not an independent power of the President. So far as I’m aware, there’s no originalist-based evidence for a special nondelegation rule for foreign affairs. The brief doesn’t make this point, but in connection with my examination of delegations of war power (here, and thanks to my great co-author Matthew Waxman), I found a range of views about such delegations, but no commentary suggesting that delegations of war power were more permissible simply because they involved foreign affairs.
Unfortunately, I suspect the Court may go the other way on the second point, as there will be considerable pressure to uphold the tariffs, and creating a foreign affairs exception is a way to do that without undermining subsequent efforts to tighten up the doctrine in domestic matters.
RELATED: There is also an excellent scholars’ amicus by Paul Stephan arguing on mostly textualist grounds that the IEEPA should not be read to grant unlimited discretion over tariffs.
- Scholars’ Amicus Brief in the Tariff Cases - October 29, 2025
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