The John Locke Foundation filed a joint friend-of-the-court brief Friday at the nation’s highest court challenging President Donald Trump’s emergency authority to enact tariffs.
The US Supreme Court is scheduled to hear oral arguments about the issue on Nov. 5. The court combined two cases tackling Trump’s tariffs: Learning Resources Inc. v. Trump and Trump v. VOS Selections Inc.
Locke joined the Arizona-based Goldwater Institute and Dallas Market Center in filing Friday’s brief.
The groups address whether the International Emergency Economic Powers Act authorizes tariffs Trump imposed based on national emergencies he declared. The brief also addresses whether IEEPA violates the US Constitution by delegating legislative power to the president.
The Trump administration has justified emergency tariffs based on concerns about ongoing trade deficits and drug smuggling, according to the brief. “There simply is no emergency.”
“Whatever powers IEEPA gives the President, there must be an emergency before they go into effect,” the brief explained. “But the President has no power to declare an emergency when there is none in reality. This Court has both the authority and the duty to determine independently whether there actually is an emergency. None exists here.”
“An emergency is a situation so urgent that the ordinary lawmaking process cannot be effectuated,” the brief continued. “But ‘trade deficits’ and drug-smuggling are chronic conditions Congress can address (and has addressed in the past) through normal legislative means.”
If Supreme Court justices side with the Trump administration and agree that trade deficits and drug smuggling create a national emergency, problems remain with using IEEPA to justify tariffs, the brief explained.
“Even if there were an emergency, however, IEEPA lacks any clear statement that it was intended to vest the President with the power to impose taxes,” according to the brief. “Because vesting the Executive Branch with power to tax at will would be an extraordinary departure from constitutional norms, a clear statement rule is proper — and IEEPA fails that test.”
“Clear statement rules are appropriate where one possible interpretation of a statute would cause such an ‘extraordinary’ departure from constitutional norms that ‘one would normally expect it to be explicitly decreed rather than offhandedly implied,’” the brief explained.
“This Court should decline to interpret IEEPA as granting the President a power so constitutionally offensive as the power to tax at will, absent a clear statement to that effect,” according to the brief. “The framers would have reacted with horror at the idea of taxation imposed unilaterally by Presidential dictate. It runs contrary to everything they held dear.”
Locke and its partners also focus on an “intelligible principle” test of the Trump administration’s approach toward IEEPA and tariff authority.
“The ‘intelligible principle’ rule holds that Congressional authorization of rulemaking authority isn’t the giving away of legislative power as long as Congress limits it by prescribing guidelines to cabin the executive branch in carrying out that power,” according to the brief. The principle “can be broad.” But “[t]hese limits prevent the wholesale giving away of legislative power to the executive.”
“IEEPA also fails the ‘intelligible principle’ test because it contains no guidelines limiting executive power, unlike other tariff statutes,” the brief argued. “Indeed, other tariff statutes give the Executive Branch only an on/off switch, while otherwise specifying how tariffs are to be calculated.”
“That IEEPA contains no such formulae, and isn’t an on/off switch, can be best explained by the fact that it wasn’t designed to empower the President to impose tariffs,” the brief added.
“Locke is proud to join the Goldwater Institute on this amicus brief to defend small businesses, free markets, and the Constitution’s guarantee of separation of powers, regardless of who is in office,” said Jessica Thompson, Locke’s director of government affairs and general counsel. “If past unilateral presidential action to mandate vaccines, impose a nationwide moratorium on evictions, forgive nearly a half billion dollars in student loan debt, or institute a new carbon emissions scheme concerned you in the past, you should be equally alarmed by this unconstitutional power grab.”
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